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REPORT 



or THE 



COMMISSIONERS ON THE CONTROVEaSY 



Vv 



WITH YHS 



BESFECTDTG TBK 

EASTERN BOUNDARY 

CF THE 

October 30, 1807. 



RE-PRrNTED BV WILLIAM L. PRALL. 

•1 r-J^ 



* 



REPORT 



OF THE 



COMMISSIONERS, &c. 



To the Honorable the Legidatiire of the state cf JSTew- Jersey^ 

The Commissioners appointed on the part of New-Jersey, to 
settle, with commissioners appointed on the part of New-York, the 
jurisdictional houndary line between the two states, beg leave tQ 

REPORT, 

That the said commissioners, under their respective authorities^ 
■net at Newark, in New-Jersey, for the accomplishment of the end 
-.or which they were appointed, and that, after long discussions, all 
ittcmpts to procure an amicable adjustment proved entirely abor- 
tive. 

Your commissioners hope that the honorable the legislature will 
lot disapprove of the breaking up of further conference, after it 
»ad fully appeared that the commissioners on the part of New- 
k'oi k had resolved not to depart from their claim over the wholA 
vaters lying between ihe respective states, includijis; shores^ roads» 
ind harbors within the natural territorial limits of JSTew Jersey. 

Your commissioners further beg leave to state, that they couldi 
lot assent to the conclusion di-awn from the fact asserted by New- 
ifork, that possession, both before and since the revolution, was la 
lOTifoi mity to their present claim — 

1st. Because notorious acts of possessions existed on the part of 
^ew-Jcrsey, and were evident to the sejises of every man along 
he whole of the shores, opposite to New York and the adjoining 
vaters, that were fully equivalent to those asserted on the founda- 
ion of the senses of the commissioners of New-York.— And 

£d. Because the right of jurisdiction over these shores and wa- 
ers, and which is the subject of the present controversy, was un- 
luestionably a jus regiiiiUf or royal prerogative right, actually 
lossessed by, and vested in the crown of Great- Britain, and exclu- 
ively exercised by its board of trade and navigation, without the 
ntervention of either of the colonial governments, at the time of 
lie declaration of independence; and consequently, that this right 
ad never been possessed or exercised by the government of the 
oluny ot New-Y'ork, at that time; and, in respect to th© time since 
lat period, no acts of jurisdiction have appeared on the part of 
Jew-York, or of acquiescence on the j^art «f JNew-Jersey, which in 



tbe opinion of your commissioners, could give to N^w-York any 
claim (Vom possemon (witiiout preten(e of ^^}^y (haiiei- or grant) 
to a preferable right of jurisdiction over tl.c shores and waters in 
question, after that of the erown of Great-Britain liad ceased, when 
8tich jurisdiction naturally must belong to the sovereignt>' of the 
adjoining country. 

Neither could your commissioncre perceive, from the arj^uments 
adduced on the p.ut of Ne\\-York, or from thoir own rrfiertions, 
liow they coti!d justify themselves in compromitting the essential 
interests of the state, by admitting — 

1st. That New-Jeraey, when she acquired her independence, did 
not acquire the rights of employing commerce from, and creating 
ft defence on her own shores ; seeing that such rights are necessary 
for revenue and security, and are incident to freedom and sove» 
reignty, and that without them these justly valued attributes could 
not long be maintained, should these United States, now happily 
connected in a federal bond, ever become unconnected and conflict- 
Ing powers. 

"sd. By admitting that the grants from the duke of York to lord 
Berkeley and sir George Carieret, and their successors, for tho 
colony of New-Jersey, although not from the Mngi, but from a stife- 
jed, were to be construed, not acording to the known genera! rulej 
of the common law, which would carry the grantees to the middiej 
of the river cr channel, agreeably to the express intent of the 
griuitor, but according to an exception to the general rule, which 
has been called the prerogative rnkt (and which applies only to 
grants made by a king^ an<l is never applicable to grants made bj 
a subject,) and which would restrict the grantees to the high- water 
mai'k. 

It will be perceived that the commissioners on the part of NeW' 
York would not agree to any general jurisdictional line, inconsis 
tent with the principles set up by them, although they consented to 
receive proposals for extending accommodations, in some particu 
lar cases, which might he shewn (o be beneficial to citizens of New- 
Jersey, and r«ot injurious to New-York. 

To treat afterwards for any such benefits, a])peared to your com 
missioneru an admission of each and every of the principles con 
tended for by New York, and combatted by New-Jersey, as cor. 
tainfd in the following sheets. 

AARON OGDEN, 
ALEXANDER C. M*^VHORTER, 
^VILLIAM S. PENNINGTON, 
.lAMES PAUKEit, 
LEWIS CONDICr, 
Odoher 30, 1 807. 



No. L 

GeKTIEM£K, 

In addition to the general fact, *^ that Nc-Ty-Tork hag r.Iwn}?, 
and without any claim by Ncv.-Jersey, exercised jurisdiction over 
the whole of the waters between the shores of the two states ;" we 
have judi2;ed it proper to state particularly the. following matter.-; 
in wi'itinis^, previous to any verba! confeiences between us. 

King Charles the second, claiming the country comprehending: 
the shores and waters in question, then held by the Dutch, and tu 
which they had given the name of wVew A'^etherland, granted, inter 
alia, a part of it to his brother, the duke of York, on the I2tti 
March, 1663-4, by the decription of "All that island or islands 
commonly called by the several name or names of Matowack's or 
Long-Island, situate and being towards the west of Cape Cod and 
the Narrow Higansetts, abutting upon Hie main land, between tiio 
two rivers, tliere called or known by the several names of Con- 
necticut and Hudson's river, together, also, with the said rivor 
called Hudson's river, and all tiie land from the west side of Con- 
necticut river to the east side of Delaware Bay," with certain 
powers of government or sovereignty. 

The duke, by lease and release of the 23d and £4th June, in the 
same year, conveyed a part of the above lands to lord Berkeley and 
sir George Carteret, by tlie description of '* All that tract of land 
adjacent to New-England, and lying and being to tlie westward o^ 
Long-Island and Manhattan's Island, and bounded on the east part 
by the main sea, and part by Hudson's river, and bath upon the: 
west Delaware bay or river, and extendeth southward, to the main 
ocean, as far as Cape-May, at the mouth of Delaware bay, and to 
the northward as far as the northernmost branch of the said bay or 
river of Delaware, which is forty-one degrees and forty minuter 
of latitude, and crosseth over thence in a straight line to Hudson's 
river, in forty-one degrees of latitude; which said tract of land 
'^as thereafter to be called by the name or names of New-Cacsarea 
OP New-Jersey." 

This conveyance is the foundation of the claim of New-Jcrsey# 
and the questions arising on it between the two states, and whicii 
we conceive to be the subject of the present controversy, are — 

First, Whether that portion of the boundary expressed, pai't by 
the main sea, and part btj Iliidson^s rivcry is a line commencing at 
the intersection of the forty-first degree of latitude, with tlie west- 
ern shore of Hudson's river, and extending thence along the shore 
to the mouth of the river, assumed to be at tlic southern extremity 
of Manhattan Island on the cast, and CoustahWs Ilook^ or what- 
over other may be considered as the corresponding or opposite 
point on the western shore, on the west, or a line commencing in, 
and extending through the channel of the river? or, in otiier words, 
^hetlier the litluSf the high-water mark, or the Jilum aquXg the 
diann?!, is to bo adjudged th^ boundary? 



n 

Sec(F,idly, Whether the line, after it leaves the river, be it either 
i..2:l. WHtej; mark or the channel, is to pass on the eastern or ^vest. 
ern side ot Siaten Island? 

The last question may be viewed as resolvinff itself into another 
namely: whether the water which, in the phraseology of the tyrant 
hereafter cited, parts Staten hland and the main, commonly known 

?e llctT '^ ""*' ^ *'''''*'''" ""^^''^ "^'" '^"' '"^^'^^^^ "» *J»e fon- 
Van D,r Donck, a Dutch writer, was in New-Netherland some 
}'ears, ami published his description of it in 1656. After haviner 
rioticeu Delaware bay, he proceeds :—'* Now to pass over to the 
bay, in which the East and North rivers fall into together, and hi 
-WHICH btaten-lH\^^A lies— and because it is the most frequented and 
most jmpulous, and in and through it the most trade and traffic is 
carrird on, and also because it lies in the middle of New-Nether- 
land, so It IS quasi per exctlleniiam called fhe Bay— it is the more 
famous, for there the East and North rivers fall in together, be- 
ing two very fine rivers—to be hereafter more particularly de- 
scribed ; topther with several kills, guts, and creeks, and some 
»I ther to be likened to small rivers, and also navigable; as the 
R^iritan kill, tiie kill of the Cul, Neversink, kc: besides, that in 
this bay more than a tiuuisand ships of burthen may, and all within 
the land, make an harbor, and may lay handsomely, safe from dan. 
geroiis %yi.,ds.— The entrance into the bay is wide enough, and to 
be found without much danger, readily, by those who have once 
been there, or have been well directed respecting it j and one can 
often with ease, if so minded, and the wind serves, immediately 
sail up, with one and the same running tide, from the sea to before 
^^^,'''!.^', ^t'w-Afnsterdam, which is five miles from the open sea. 
with t« J lading, however large or burthensome the ships may be 
and in like manner return again to sea; but in going out it is 
usual to come to under Staten-lsland, at the watering place, to lay 
K.I a stock of wat.-r and wood, of both of which theie is a suffix 
aency to he had."—'* One may come so far in the bav, bchinii 
bandy-HooK, to take advantage of the wind and tide, and wait for 
the last messengers with letters.'* 

JSTexv-J^'ctherland was conquered from the Dutch, by the Enarlish 
on the 27tli August, 1664 ; and Nicolls, who commanded the arma' 
joeiit, immediately .,n the conquest, and in consequence of a com- 
mission from the duke, of the 2d of April preceding, entered on the 
exercise of civil government throughout the whole of the terr-torv 
comprised m the grant of the duke, under the style of his Devutii 
Governor. ^ ^ 

The letter from the duke to Nicolls, notifying him of the con 
veyance to lord Berkeley and sir George Carteret, or, as tliey and 
their assigns have been usually denominated, the proprietors is 
dated on the 28th November. 1664 ; but when in the intermediate 
tnnc beiore the arrival of Philip Carteret, the first governor under 
tho proprietors, in the ensuing .summer it came to his hands, does 
not a]n)ear. 



On the Ist Decemlier, in llie same year, !ie cfrantpfl io TJakpp and 
his associates, a tract of land described as f'ollf \vs: — •' A (>;ii( d of 
land, bounded on the south by a river, eornmoniy called tlie liari- 
taii's river, on the east by the sea, which parts Staten-Islirnd and 
the main, and to run northward up after Cull bay, till you come 
to the first river, which sets westward out of the said bay, and to 
2*un west in;o the country, twice the lengtlj of the breadth thereof, 
from the noith to the south of the aforementioned bounds.** 

I'he tvater^ parting Sluten-I-iland and the maiti, in the craut 
ilenominated sea, had, in the Indian deed, procured by the graMt<'e8, 
in consequence of a pi*evious license from NicolJs, and on whicli 
the errant was founded, been denominated a river. This gi-ant, as 
it regards a laige portioti of the land granted by it, has been 
usually distinguished as the Eli%aheih Town grant t and the claim- 
ant« under it as the Elizabeth- Town people. 

The proprietors^ as soon as this grant came to their knowledge, 
objected to it, that tJie duke, having alieady sold an<l cotivejed 
away tiie lands to them, there was no title in him at the time, and 
consequently the grant a nullity. The Elizabeth-Town people* 
however, persisting to maintain it, on the giound, that they had 
purcnased the Indian title, and that the grant had thereuj)on regu- 
larly passed to them before any notice, either to Nicolls or them, 
of the prior alienation by tlie duke. A litigation between these 
parties respecting it took pluce, and which still subsisted at the com- 
mencement of the American revolution ; and if it is tuAV to be con- 
sidered as having ceased, it is to be attributed either to that event, 
or to a length of j»ossession under the grant, or other circumstances 
the effect of a lapse of timej and in a very early stage of it hotii 
the king and the duke gave their aid to the proprietors^ by foi-rnal 
printed declarations, in opposition to the claims of the Elizabeth' 
Town people. — Governor Lovelace, of New-York, in order to ex- 
tinguish the claims of the Indians to Staton-Island, made a formal 
purchase of it from them, in behalf of the duke, on the tstii April, 
1670. A partitiosi of tlie entire tract conveyed by t!ie duke to lord 
Beikeley and sir George Carteret, having taken place, and the 
eastern moiety, oi- l£ast New-Jersey, having tl)ereuj)on become the 
purpart of sir George, the duke, to t!ie intent ui farther assurance, 
executed three successive releases for it — one to sir George him- 
self, on tlie 29th July, 1674, with the following description of ita 
eastern boundai-y : — " bounded on the east part by the main sea 
and part by Hudson's river;** another to his grandson and heir, 
on the lOtli September, 1680, and the third to t!ie earl of Perth 
and others, the then proprietors-^ on the 14th March, 16S2, with 
the following description of boundary in each : — "■ Extending east* 
^vard and northward along the sea coasts, and the said river, call- 
ed Hudsou*s river, from the east side of a certain place or harbor, 
, lying on the southern part of the same tract of land," (the entire 
tract conveyed by the original conveyance from the duke to lord 
Berkely and sir George Carteret) **and commonly called or known 
!n a map of the said tract of land, by the name of Little ^^'' 



Hnrbcf, to that part of tho said rlvert called Hudson's rive^j 
%v!iiih is in forty-ojie degrees of latitude.'* 

NicolJs, by ,^rant of 2Sd December, 1667, after a recital in thoss 
^\'orcis, ** Whereas thei-e is a certain island within this govern- 
ment, lying and being in Hudson's river to the west of Long- 
Island, between Nuttcii Island and the main, and south south-we.-.t 
from this fort, commonly called and known by the name of the 
Groat Oyster Island, it being the biggest of the three small islands 
which lie there, near or adjacent one to another, to which said 
island there appears not to be any particular lawful owner, eitlier 
natives or others, who have just title, or do lay claim to the same,*' 
grants it to Robert Needham. This grantee, tlie day after it, con- 
veys it to Isaacs Bedlow, whose name it has borne from that time 
Litherto. 

Governor Androa granted Little Oyster I-^Iand, being the second 
in size of the three Oyster Islands, known also as Bucking Island; 
to William Dyre. The date of the grant in this instance, is, as it 
resj)ects the month and the unit of the year, left blank in the re- 
cord of it. 

In 1683, a body, exercising legislative authority in the colony 
of New-York, under the style of tlie Oovernor, Council, and Bepre- 
sentaiivest passed sundry acts, and among them one entitled. ♦♦ An 
act to divide this province and dependencies into shires and coun- 
ties," with the following descriptions of the boundaries of the city 
and county of New-York and the county of Richmond. ♦♦ The citj 
and cttunty of New-York to contain all the island commonly called 
Manliattari Island, Manning's Island, and the two Barn Islands ; 
the city to be called as it is, New- York, and the islands above 
specified the county tiiereof." — *^The county of Richmond to con- 
tain all Staten-Island, Shooter's Island, and the islands of meadow 
on the west side thereof." — These acts were re-enacted in 1692, 
and as it respects Richmond county, in the same terms ; but as it 
respects the city and county of New-York, with the following va- 
riance : — *♦ The city and county of New- York, to contain all the 
island commonly called Manhattan's Island, Manning Island, and 
the two Barn Islands, and the three Oyster islands ; — Manhat- 
tan's Island to be called the city of New- York, and the rest of the 
islands the county." 

The charter to the city of New-York, 1686, contains the follow- 
ing description of its boundaries ; — " The city of Nev.'-York, and 
the compass, precincts, and limits thereof shall extend and reach 
itself, as well in length and in breadth as in circuit, to the furthest 
extent of and in and throughout all that the said island'Manhat- 
tans, and in upon all the rivers, rivulets, coves, creeks, waters, 
and watercourses belonging to the same island, as far as low-water 
mark" — and grants to the corporation " all the waste, unpatented, 
and unappropriated lands lying and being within the said city, and 
on Manhattan's Island, extending and reaching to the low-water 
mark, in, by, and through all part3 of the eamo city and Manhat 
tan'a Island aforesaid." 



The charter of 1708, grants to them ^*all the vacant and unap- 
propriated ground lying and being on Nassau Island alias Long- 
Island, from higli-water mark to low-water mark, contiguous and 
fronting the said city, from a plare called the Wallabout to the 
Red-Hook, ON cr against Nutten Island, that is to say, from the 
east side of the Wallabout, opposite the then dwellinghouse of 
James Robine, to the west side of the Red Hook, commonly called 
the fishing j)lace." And notwithstanding, both as it respects Man- 
hattan's Island and between the Wallabout and Red-Hook, on 
Long-Island, the whole of the upland, or lands immediately bor- 
dering on, or expressed to be bounded by t!ie adjacent waters, or 
respective rivers, had been priorily giauted to private persons, 
the title of the corporation, as under these grants, to the land bC' 
tween higli and low-water mark, has never been questioned. 

The charter of 1730, contains the following description of the 
boundaries of the city: — '* To begin at the liver, creek, or run of 
water called f^pit Ben Duyvel, over which King's Bridge is built, 
whei-e the said river or creek empties into the North river, on the 
West-Chester side thereof, at low- water mark, and so to run aloiig 
the said river, creek, or run, on West Chester side, at low-water 
mark, into the East river or Sound, and from thence to cross over 
to Nassau Island, to low'-water mark there, including Great Bara 
Island, Little Barn Island, and Manning's Island, and from thence 
all along Nassau Island shore, at low-water mark, unto the nnith 
side of the Red-Hook, and from thence to run a line across the 
Nortli river, so as to include Nutten Island, Bedlow's Island, 
Bucking Island, and the Oyster Island, to low water mark, on the 
west side of the North river, or so far as the limits of the province 
extend there, and so to run up along the west side of the said river 
or low-water mark, or along the limits of the province, until it 
comes directly opposite to the first mentioned river or creek, and 
thence to the place where the said boundaries first begun." — I'his 
charter also grants, that the mayor of the city, for the time being, 
*' shall be baitiff and conservator of the -waters of the Korih and 
East rivers ;'' and accordingly all arrests on these rivers were 
made by the mayor, as water bailiff, and tiie process for the pur- 
pose was directed to hi(n.--Of late, and probably within twenty 
years, the practice has, by some means, gone into disuse, and, ia 
place thereof, the process is directed to the sheriff, and served by 
him.— The three Oyster Islands and Shooter's Island are respec- 
tively, as relative to Manhattan Island and Staten-Isiand, beyond 
or westward of the channel. 

There are records of more than one hundred and thirty grants, 
made at various times, by the successive governors of New-Yoi-k, 
during the first thirty-five years from the conquest, to different 
persons, for lands on Staten-Island; some of them original grants, 
and others in the nature of confirmations ^ and the greater propor- 
tion of them subsequent to the release from the duke to the propri- 
etors of East-Jersey, in 1682. 

There was soon a controversy between New -York and New- 

B 



10 

Jersey, concernins^ tbe northern boundary of the latter, or the 
points or stations, tlio ^^est^M■n and eastern terniinations of it, on 
tlie Oelaware and Hudson respectively: when it began, cannot 
now, jierhaps, as lo any precise period, be ascerlaij>ed ; but, as 
early as tlic yeai- 1700. the assembly of New York, in an address 
to tlie ,a;<)vern«>r. lord Bellamont, mentions, "that differences have- 
arisen between the county of Orange, in this province, and the 
pr .virice of East New-Jersey, and they theiefore ptay him to take 
into bis co»it«kderation the settling the bounds between tlie two pro- 
vi'ices." It was at last, in consequence of mutual acts by the re- 
ap* ctive legislatures, submitted to consmissioners to be appointed 
b} the crown. — "The ajtpointment took place accordingly, and 
the commissioners, having assenybled and heard the parties, they, 
on the rth October, 1769. deciced, that the boundary or partition 
line between the colonies of New York and New Jersey should be 
a direct line from the fork or branch formed by the junction of the 
strejim o) waters called the Mahackamack with the river called 
the Dilawaie or Fishkiil, in the latitude of forty-one d« grees, 
twenty -one minutes, and thirty-sevejj seconds, as found by the sur- 
veyors appointed by the said commissioners, to a rock on the west 
side of Hudson's river, marked by the said surveyors, in the lati- 
tude of forty-one degrees, being seventy-nine c^iains and twcnty- 
seveii links to the southward, on a meridian from Sheyden's house, 
formetly Corbctt's." — Both parties being dissatisfied with the de- 
cree, as it related to the point or station on the Delaware, appeal- 
ed tf> the king in council, pursuant to a right reserved in the acts 
of submission; but in the course of two yeai's thereafter they con- 
cluded to reiiiKjuisb their appeals, and by like mutual acts to 
"adopt and confirm the line so decreed by the commissioners, and 
drclaiing. that it was and should be the boundary or partition Jiiio 
beiween the two colonies, and provid ng for the ajipointment of 
cojiimissioners on the part of each to join in ascertaining and 
marking it so that it might be suiiiciently known and distinguish 
ed and the comiiiissi«»nei's were directed and required to mark the 
before meutioned lix k, on the west side ol Hudson's river, with a 
strai-hi line throughout its surface, passing through the place 
marked by the sur\eyor8 with the follovvitig words and figuies, to 
tvil : ' latitude 41 degrees north,* and on the south side thereof the 
•words .yexv- Jersey, and on the north side thereof the words JVeic- 
Fork, and to maik every tree that might stand in the said line 
with bve notches and a blaze on the north, west, and soutli-east 
sides thereof, and to put up stone monuments at one mile distance 
from each other, along the said line, and to number the said monu- 
ments with tlie number of miles the same should Ije from the before 
mefitioned rock, on the west side of Hudson's river, and mark the 
■Words * JVew Jersey* on the south side, and the words 'JScw-York* 
on the north side of eveiy of the said monuments." 

On the 20th April, iVgs, the common council of New-York 
passed the I (Mowing ordinance or by-law and order: — 

«» It beinij represented to the board, that certain persons had set 



11 

up fuyck fences in the river, below low-water mark, on the south 
:ii(le of Faulus Ilook, on the Jersey shore, to the olistrucfion of 
drawing seines for the takinj^' of fi^h ; whereupon the following 
ordinance was passed by the board : — 

*' A law to prevent the setrina^ of fences or other obstrurtinns 
in the rivers within the limits and jurisdiction of the city of New- 
York. 

** Be it ordained by the mayor, aldermen, and commonalty of 
the city of New-York, in common council convened, and it is here- 
by ordained by the authority of the same, that no person shall set 
or place any fence or stake, or any (jther tiling wliatsoever, in ai»y 
parts of the rivers or bays within the limits atui jurisdiction of the 
said city, by which the navigation of the said "ivers oi- bays, or 
the casting or drawing of seines or nets for the taking of fish, may 
l)c interrupted or obstructed ; and if any |)erson shall or do set or 
place any fence or stake, or any other thing whatsoever, in any 
part of the said rivers oi* hays, contrary to this law, surh person 
shall, on conviction, forfeit and pay, as a fine for each offence, the 
sum of eight pounds. 

" And further, that it shall be lawful for any person to take up 
and remove any such fence or stake, or other thing, which may at 
any time be found set or placed contrary to this law. as aforesaid. 

*• Ordered, that William Sloo, who is employed by this board to 
take fisli for the use of the Aims-House and Bridewell, do rause to 
be taken up and removed all such fences or stakes, or otiier things, 
as may or shall be set in the river in the manner aforesaid, and 
which tnay or shall obstruct or interrupt him in casting or draw- 
ing his seine as aforesaid." 

We have been informed, so as to be fully satisfied of the fact, 
that the fences and stakes were instantaneously removed by the 
persons by whom they were placed, and who, at the same time, 
disavowed any intention to obstruct the fishery. 

We are, with due respect, 
your obedient servants, 

EZRA L'HOMMEDIEU, 
SAxMUEL JONES, 
EGBERT BENSON, 
JOSEPH C. YATI':S. 

i'o Aauon Ogdek, William S. Pennington, James Parker, 
Lewis Condict, and ALKXANDiiR C. M*Whorter, esquires, 
commissioners, &c. 

September 28, 1807. 



u 



No. IL 

Observations upon the question, whether by the grant of th© 
duke of York, of the 24th June, 1664, to Berkeley and Carteret, 
the right of the grantees was limited to high-water mark on the 
Hudson river, or extended to the centre of that river, usually term- 
ed the j^/imi aquce. — Charles the second, by his deed, dated the 
12th March, 1663-4, granted to the duke of York the Hudson ri- 
ver in terms, by these words, ** together, also, with the said river 
called Hudson*s river.'* — The duke afterwards, by his deed of re- 
lease, dated 24th June, 1664. granted to Berkeley and Carteret 
*'all that tract of land adjacent to New-England, and lyng and 
being to the westward of Lojig Island and Manhattan's Island, 
and bounded on the east part by the main sea, and part by Hud- 
son's river, and i>ath upon the west Delaware bay or river;" "and 
also hII rivers, mines, minerals, woods, fishings, hawking, hunt- 
ing, and fowling, and all other royalties, profit.'., commodities, and 
hereditaments whatsoever, to the said lands and j}i'eniises belong- 
ing or in any wise appertaining, with their and every of their ap- 
purtenances, in as full and ample a manner as the same is graiited 
to the said duke of York.'* — 'be idea, that the right of the duke's 
grantees is limited to high-water mark upon the Hudson, arises 
from considering the river as a public one, in which the tide ebbs 
and flows; and of course, at the time of the duke's giant, tiie soil 
and the water over it below high-water mark, at the common law, 
belonjred to the king, and has not, at any time subsequent, j)assed 
out of him to an^ individual, and, of course, the state or |)ublic 
body that acquired the king's right became entitled t(! the whole 
of this river: or else, that the river passed to the duke by the 
king's grant, but did not pass by the duke's grant to Berkeley and 
Carteret, it not being granted to them in term"-; — and was carried, 
of course, by him to the crown, upon his acquiring it. — If the king 
]iad power to grant the river, it is presumed no person will doubt 
but that it passed by the gi-ant to the duke. That he had such 
power at the common law, satisfactorily appears from Mr. Har- 
grave's Law Tracts, Id, 17. The Hudson then ceased to be a royal 
j'iver on the 12th March, 1764, and became the private property 
of a subject. By this transition, it is supposed it became subject 
to the law that regulates inland or private rivers, and lost the 
prerogatives which regulated the right to it when it was the pro- 
perty of the ciow n. 

By the feudal law* al! navigable rivers were computed among 
tlie regalia. From this source, and from cei-tain j)oIitical conside- 
lations, the same princijsle passed into the common law, and it 
Iicing once established, that a navigable river belonged »o the king, 
all his grants respecting such river were subject, ot course, to tlie 
roustruction peculiar to royal grants. If, therefoie, the kingovvnt 

* 1 Blacitstone's Commentaries 274, — 2 Ibid. 262. 



IS 

«d the soil adjacent to a navigable river, and .^ranted it to a sub- 
ject, biii(iin,g liiii) upon the river, the graiit«'o \\<iul(l he limited by 
hiii:h-vvater mark, the errant being construed most favorable to the 
king, and nothing by intendment being taken against him. — IMio 
ow ers of the soil adjacent to navigable rivers are therefore, prima 
facie, not owners of any part of the river: and if they claim title 
to the river, it must be strictly shewn by a grant from the king, 
in express terms or by prescription. — It is well known that tiie 
law*= in res|)ect to fresh riveis, or private rivers, as they are fre- 
quently termed, is directly otherwise, and that such riveis, of 
common right, belong to the owners of the soil adjacent; and that 
this ownership, prima facie, in all cases extends usque JHutn aquce, 
which arises from the construction of the grant of the adjvicent 
soil, binding the grantees upon the river — alJ such grants, by con- 
struction, carrying the right of the grantees to the Jilum aquce.j 
This construction of law, so favor-able to royal property, is one of 
the prerogatives of the crown, and never adheres to any descrip- 
tion of property (except in some special cases of tenure by knight 
sci'vice) when such property ceases to be royal.:}: It follows then, 
conclusively, that if the soil adjacent to a navigable river, together 
♦with the river itself, bec4)me vested in a subject, and such subject 
make a grant of the adjacent s(»il, binding the grantee upon the 
river getjcrally, without restriction, that such grant must receive 
the same construction as is incident to every grant of soil adjacent 
to a pi'ivate river; otherwise that quality of the property whicli 
springs from prerogative only, would adhere to it after it passed 
into the hands of the subject, whieh, according to all the cases, can 
never be. The true doctrine, then, is, that, at the common law, 
when a navigable river becomes vested in a subject, it ipso facto 
becomes a private river, and all the law regulating the rights to 
private rivers necessarily attaches to it; subject, however, to the 
right of government, and to the jus publicum, hereafter spoken of.§ 
In the great case of the river Severn, the lord Barclay prescribed 
for the river, usque flum aquce, as j)arccl of the manor of Barclay, 
and proved his prescription. Supj'ose he had graiitcd the manor 
binding upon the river, in the usual form; it is presumed no one 
could doubt but the whole manor would have passed, on idea, that 
the section of ihc manor between high-water mark and the fbini 
aquae, remained in the grantor, could only be entertained for a mo- 
ment, upon the supposition, that the binding by the river in terms 
limited the grant to the margin : hut when it be considered, that 
if tlie boundary be carried to the fdum aquce. the binding is equally 
by the river, the whole resolves into a question of construction, 
which, in tlje case of all private grar)ts, being most unfavorablr to 
the grantor, at once extinguish<^s the idea of the aforesaid section, 
i^f the manor remaining in him after such grant. 

* 4 TJnr. 2164. — Harjjrave's Law Tracts, 5, 

t 1 Black. Com. 248-9. 

i 17 Viu. Abr. 96.— I Pur. Wm. C?:;.— -J Con. Ke;>. 5t;.— Prin. Lav, 85", 

■j Hargrave's Law Tracts, 85. 



14 

Every navigable river, thus naadc private by the grant of tfie 
king, like the river Severn, is still subject, as is said ol" that river, 
to two distinct rights.* — 1st. The right of government over it, 
which the suprenje power of the nation necessarily retains, in re- 
ference to the safety of the nation, and to the customs. — 2d. 'I'he 
jus publicum^ as it is termed by lord Hale, or the public interest, 
that the people have of passage and re-passage with their goods 
by water: for, as that great judge says, speaking of a navig:ible 
river granted to a subject, " the people must not be obstructed by 
Buisatices, or impeached by exactions." — '* For the jus privdijim 
of the owner or proprietor is charged with, and subjected to ti-at 
jus publicum which belongs to tix" king's subjects, as the soil of an 
highway is, which though, in jjoint of property, it maj be a j)ii- 
vate man's freehold, yet it is charged with a public interest of tlie 
people, which may not be prejudiced or ilanmified." 

It may not be amiss to remark further, that if Judge Tucker's 
opinion, as expressed in his Blackstone,f be tj'ue, " that all pre- 
rogative rights in this country ceased at the revolution,'' it seems 
necessarily to follow, that the law applicable to the rights of pri- 
vate rivers, became common to public or navigable waters also,t 
and that peculiar right, by prerogative inherent in the crown, 
which occasioned the distinction in law in respect to these two 
kinds of rivers being extinguished, no distinction in the law, as to 
such descrijjtion of waters, remained. It is presumed, therefore, at 
this day, that the rights of individuals, as relative to public and 
private rivers, are precisely tlie same ; all, however, subject to the 
two description of rights before particularized, vix. the superin- 
tending right of the government, for the purposes of public safety 
and revenue, and the jus puhlicum. 

This statement and consideration of the law accords witli the 
practice and usage, and witli the common understanding, it is be- 
lieved, of the people of the United States.^ It was, no doubt, under 
this view of the subject, that the enlightened commentator of the 
laws of Connecticut, lays down the law to be — that *♦ all rivers 
that are na^ igable, all navigable arms of t!ie sea, and the ocean 
itself, on our coast, may, in a certain sense, be consideied as com- 
mon ; for all citizens have a common right to their navigation, but 
all adjoining proprietors on navigable rivers and tlie ocean have a 
right to the soil covered with watej*, as far as they can occupy it, 
that is to the channel, and have the exclusive privilege of wharfing 
'and erecting piers on the fiont of their lands. Any person, there- 
fore, has a right to sail through the water that covers the land of 
another, without being liable for a tres])afis, in the same manner 
as one may pass through the air that is above the land of another, 
but no man has a riglit to do any act in the navigable waters iu 
front of another's land wliich can affect the soil, as wharfing or 
erecting piers, for in this there is an exclusive property, thouglt 

* Harg. Law Tracts, 3C. + Page 237. 

.> 2 Black. Cora. 262. § Swift 341. 



15 

there is not in the water; nor may adjoining proprietors erect 
wharves, bridges, or dams across navigable rivers, so as to ob- 
struct their na\ia;atioii." 

It is prrsdiued Mr. Swift meant to be understood, that such was 
the understandin,a^ of the roniinoii law in Connecticut, and it is be- 
lieved that such is necessarily the understanding of the common 
law in every state in the Union since the revolution. 

The result of tlie whole of this doctrine, then is, that, upon the 
strictest principles of the common law, the grant of the duke to 
Berkeley and Carteret, binding them on the east by the Hudson, 
cariied their right of soil to ihc Jilum aqncB of that river: that no 
restriction in that grant was intended by the gi-antor, every one 
who reads it will readily admit. It conveys, in terms, all the land 
lying to tlie westward of Manhattan Isiainl. If an adherence to 
express terms of grant is to be so much attended to, as is contended, 
a more plausible argument arises from considering the land under 
tiie Hudson as expressly included in these words, and carrying the 
right of Berkeley and Carteret to the eastern margin of the river, 
than limiting them to the western: and when it is observed that 
the grant contains ** all rivers," it is presumed that, instead of any 
restriction of the property, that was the subject of the grant being 
intended. The intent was, that it should embrace all property that 
by the most liberal construction of the law could be brought within 
it; there being, then, no intent on the part of the grantor to limit 
the grant within the extent the construction of law would otherwise 
give it. If the statement of the law hei-ein contained be correct, the 
conclusion on the question is inevitable. 

That the grant to Berkeley and Carteret, at the time it was 
made, cai-ried their boundary on the east to the filum aqucB of tlie 
Hudson I'iver. 

"We arc, gentlemen, respectfully yours, 

AARON OGDEN, 
ALEXANDER C. M'WHORTER, 
WILLIAM S. PENNINGTON, 
JAMES PARKER, 
LENMS CONDI CT. 

To Ezra L*Hommedieu, Egbert Benson, Samuel Jones, Jo 
SEPH C. Yates, commissioners. 

September 29, 1807. 



1^ 



No. III. 

Gentlemen-, 

Before a verbal conference, we beg leave further to submit for 
your consideration — 

1st. Certain extracts and an affidavit, marked A, B, C, D, E. 

2d. That a port has been established at Perth-Amboy ever since 
the settlement of New Jersey ; and that the inhabitants of New- 
Jersey have been always in the constant practice of buildin,^ 
wharves, erecting piers, establishing ferries, and taking fish and 
oysters in the waters adjoining, without any material interruption 
or question till of very late years. 

3d. A clause in Smith's History of New-Jersey, describing 
Manhattan's Island as in Hudson's river. 

4th. The duke of York's grant to Berkeley and Carterel, of 
New- Jersey, in Ju)ic, 1664, binds the territory therein conveyed, 
** on the east, part by the main sea, and part by Hudson's river," 
and hath upon the west Delaware bay or river. 

5th. Whether to take Staten-lsland out of the diike's grant, it 
must nol be shewn that it lies east of the main sea ? 

6th. AVhctlier this can be shewn in any other way than by prov- 
ing that the Sound, which separates it from the continent, and 
makes it an island, is the main sea ? 

7th. Whether the word maiiit as connected with sea. must not 
be presumed, in legal construction, to have been introduced into 
the gi'ant for some purpose, and whether any purpose can be ima- 
gined but the obvious one of giving a definite meaning to the word 
sea; and to do away all unceitainty in the eastern houndai-y which 
mislit arise from confounding sounds, straits, or arms of the sea, 
with the sea itself? 

8tl). Whether the term main sea has not a precise legal signifi- 
cation, which corresponds with the vulgar or common significa- 
tion of it, and synonymous with ocean; and whether this be not 
chief justice Hale's idea, in his description of it, when he says — 
** The part of tlie sea which lies not within the body of a country, 
is called the main sea or ocean." 

9th. The duke, by his subsequent confirmatory grants of East 
New- Jersey, of 1680 and 1682, declares the eastern boundary to 
extend "eastward and noithward along the sea coasts, and the 
said river, called Hudson's river," &c. — Whether the salt mea- 
dows, which chiefly constitute the western margin of the Sound, 
and which is thirty miles from the ocean, can be considered the 
sea coast which is called for by the grant ; and more especially 
when the confirmatory grants add, " and all and every isle, 
islands," &r. could the duke, or any other person, conceive that 
the legal tilie to Staten-IsSand still remained in him? 

10th. Whether the grants of the duke are to he circumscribed 
within the littus, there could have been any islands meant to be 
conveyed thereby ? 



17 

11th. Whetlier the duke must not be presumed to have granted 
under legai advisemmt ? And whether, according to the most ap- 
proved rules of construction, his words ought not to be taken in 
the .«tronjrest and largest sense against him, so as not only to im- 
port as mucli as they do in common use, but also to include that 
signification which is known and received among lawyers? See 
Puffendort', lib. v. ch. 12, sec. 13. — And whether the words maiib 
settj under the above idea, do not mean more than the word sea, 
mentioned in the grant '>f Nicolls to the Elizabeth-Town people, 
as lying between Staten-Island and the mainland? 

12tli. riut the proprietors of b.ast New-Jeisey had great con- 
troversy with their first settlers, and on that account could have 
had no wish to have the weight of the crown thrown into the scale 
against them, by having a controversy with the royal governor 
respecting Staten Island ; especially with the arbitrary and tyran- 
nical governor Andross, who shewed, at the same time, his power 
and his want of justice, by actually imprisoning governor Carteret, 
of New- Jersey, for the bare assertion of his lavvful authnrity in 
parts of New-Jersey not in controversy. — I'he above is submitted 
as a reason why the proprietors of New-Jersey did not assert their 
jurisdiction over Staten-Island further than is referred to in the 
extracts submitted. 

13th. Ihat an Indian title has never been considered, in JV'ew- 
Jersey, any objection against one regularly deduced from the crown. 
Besides, the purchase of governor Lovelace from the Indians, for 
the duke, was in 1670, and anterior to bis several grants of 1674, 
lo80, and 1682, by which all the rights he had at those times must 
have severally passed. 

14th. That if a giant be restricted by actual length of chain or 
a natural landmark on the margin of a river, nothing can be pre- 
sumed to have been conveyed further; and, as far as we have had 
opj)ortunity to inspect the several grants and patents which have 
been shewn to us, they all appear to be capable of being reconciled 
on tliis principle, to the common law construction of deeds that 
we have heretofore submitted; except, perhaps, in the grants to 
some towns, which seem to be grants of jurisdiction, as to corpo- 
rations, over lands which had been previously, or might be there- 
after purchased by the settlers. 

15th. That the commissioners who determined the northern 
boundary of New-Jersey, were excluded from settling the eastern 
boundary : henec it was that the commissioners marked the rock 
on the west side of Hudson's river with a straight line throughout 
the surface of the roek, passing through the place marked on the 
rock by the surveyors, with latitude 41 degrees north ; and on the 
south side of the rock the words, Nesv-Jersey; and on the north 
side with the words, New-York : and hence it is, also, that they 
did not mark the east sid.^ uf the said rock with the words. New* 
York, if they had decided that to be the easteru boundary, 

G 



18 

16th. Forthfsp o?)qprvatior)s on the ronstrwrtion of the several 
grnnt^ fioii! the (!ukp. iii(J«'|)Chdont of the coimnon law coiistruction!] 
Bieretofore sub nittpil — whir!) p..|»er is mark*^d No. 2 

We ai-e, with due respect, yoin* obedient servants, 

AARON OGDEN, 

WILLIAM « I'ENNINGTOI^r, 

JAMES PARKER, 

LE IS ' ONr>lCT, 

ALEXANUEll C. M*MHORTER. 

To KZRA L'HoMMEDIEU, SamUEL JoNES, EgBEUT B£NSO^, Jc» 

SEPH (', Vates, esquires, €0111 Qiissioners, &c. 
September 30, Iftor. 



No. IV. 

GeMTLEMEWj 

h. an^>.ver to your ohservation« on the question, "Whether fey 
the tfia^tt ot the duke fit York, of the 24(h Jun*-, 1664, to Berkeley 
aiid Carteret, the right of the grantees was limited to hijuh-water 
mark on the Hudson river, or extended to the centre of that river, 
lisual'y termed the//?<»i aqua.** It is requisite for us to attend to 
oi'e ptiM(i|>li, stat'd Uy \ou, in its applirattoit to the grant from 
the king to tlie duke, and the grants from the r^uke, namely : that 
at tie common law, when " a navigihie river becomes vested in a 
subject, it ipso facto becomes a private river, and al' the law regu- 
lating tiie ri.nlits to private rivers, neressari'y attaches to it."— . 
Although, as will be perceived, we forb«ar from the examination 
of this principle, sti^l to gu.'id against presumptions from ou: si- 
lence, we think proper to declaie, ihar we do not admit, because 
we do not disrern, the law to be as we c\>nceive jou advance it; 
that when the soil adjacent ti a navig;ible river on both side'^ of 
it, together with the nier itseil, becomes >ested in a subject, and 
such subject ntakes a gr; nt of a parrel of the adjacent soil, on nn© 
side of tiie river, boutiding the grantees u|,on the river generally 
W ithout restriction, tiiat the right of the grantor to the river, com- 
prehending the water, and the land covered with it, and the right 
of juii dictioii, (if he shall also happen to hn\e such right) to ex- 
tenil heiw« 'Ml certain lines li oni whne it is SO houud to the riv®r» 
OQ tiio cUamiei^ will yAna to the giAuteOo 



19 

9upposin,e:, however, that when the rase was a res inUgra^ or 
allow iii,q a rouveiiiiMit time to Berkeley anfl Caitei-et, aftei di© 
gratit to them, to inform themselves of tlieir li^ejiits, it mit^ht tliea 
have been made a question, as to the rules by wiiirh tlie j^i atifs of 
the duke were to be construed ; we say, that these ha vine: beei a 
cotemporaneous ex,»ositio»i, and a usa.^e or practice in confo* 'nity 
with it, for a period little short of a century and a half, such quesi- 
tion must now be precluded. 

The grant fiom the king to the duke, besides passing an estate 
Jin the territory, furtlur grants certain rights of jurisdictioi- or 
governtuent, and which, as to be discriminated or ab tracted IVoro 
his estate or interest in the tenitory, crunpredending the rivers 
within it, vve shall denominate his right of jt4n'sd/c/io« ; and al- 
though tl»c duke, as b<'tween him and the king, was certainly to 
be considered as a subject; yet in consequence of his right of ju- 
risdiction, Itis grants were to receive thi like construrti<»ii as if Ihey 
had been immediately from the sovereign, witliout the iMtervcmug 
grants to him; and in that sense, and in reference ta that construc- 
tion of his grants, he wasv as between him and his grantees, to be 
considered as sovereign, and so the law has always been leceived 
in New-York; and accordingly every grantee has been deelared to 
have sued out his grant at his peril ; and as a consequence, if he 
Received the duke in his suggestions for it, the grant was viiid« 
And further, the grants of the corporation of New York, for th© 
land between higli and low-water mark, mentioned in the statement 
we have delivered to you; and the grants which are still constantly 
made by the commissioners of the land office, undei- the authority 
of the state, for the soil below h gh-water mark, where it had not, 
prior to the American revolution, been expressly granted, either 
by the duke, before or after his accession, or by his successors to 
the erown, after his abdication, all rest on the ground, that wliere 
the gj-ant for the adjacent land was bounded generally by the river 
nothing passed below high-water mark; or, i»i fine, that tl»e js:rants 
by the duke, as it regarded the rules by which they were to he 
cortstrued, were to be deemed royal grants. 

Whether the law of New Jersey has been held, that where the 
proprietors, prior to the mode, afterwards observe«l, of appropri- 
ating lands by warrants from council of proprietors to the surveyor- 
general, made a grant of land adjacent to a navigable rivej*, so 
wi'hin the fauces terrceuf the territory granted to them, as unques- 
tionably to pass with it, and binding the land gen' rally on the 
river ; the grantee, as between him and the proprietors, was in 
virtue of the grant for the land, also entitled to the river as far as 
the channel, we are not informed : but supposing the law so to have 
been held, and consequently that, as slated by us, it is tu be d«eme(l 
the mere lex loei of New-Vork, and, as such, not afferting the rights 
of New-Jersey, still we trust you will be sensihh , that it having 
now become, as it were, a fundamental in «>ur state, it wonM he 
hig'iiy unadxisable in us to depart from it; noi ohly so, hut we 
have a perfectly satisfactory convicttou, there was sufiicieut war- 



rant, and founded in the law of England, as to be applied to the 

case or colony slate, to assume and adopt it in the first instance, 
and that it has been wise to persist in it. 

We remain, with due respect, 
your most obedient servants, 

EZRA L'HOMMEDIEU, 
SAMUEL JONES. 
EGBERT BENSON, 
JOSEPH C. YAT. S. 

To Aaron Ogden, Alexander C. M'Whorter, William S. 
Pennington, Lewis Condict, and James Parker, esquires^ 
comnjissioiiers, &c. 

September SO, 180r. 



No. V. 
Gentlemen, 

\y e have hitherto considered this question in the light of a grani 
from one subjort to another, of laud lyinc: '•' naviji;able waters.-— 
Su|(j)osing we a«'e wioiig in the conclusion which we ha\e drawa 
from this view of the subjert, yet the real situation in which we 
stand, presents to the mind a difftrent view of the question. 

The duke of York received from his brother, Charles the second, 
a grant of a large tract of land in America, at thai time little bet- 
ter than a vvilderness, for the purpose of settlement and improve- 
ment, with ample powers of government. The duke, finding this 
territory too large for one colonial government, before the country 
was even taken possession of in his name, grunted a large district 
of this country, of near two hundred miles extent, separated from 
the rest, on the eastern boundary, by large navigable waters, with 
like powers of government, to two of his friends, at that time high 
in the confidence of the king. This grant being made for the sole 
purpose of enabling the grantees to plant a colony, and improve 
the country; thereby to benefit, extend, and protect the empire. 
We apprehend that this grant, from the general principles of law 
arising therefrom, witlmut any thing more, being the grant of an 
independent colony, carries witli it a right to the use of the sea 
and navigable waters adjoining the same. Lest it should be said, 
that we take for granted what is yet to be proved, we will, in the 
first place, shew upon what ground we say, that the grant carried 
with it the powers of government. The state of New-York, we 
apprehend, will not deny that the powers of government were 
granted to, and vested in the duke of York, throughout the whole 
territory conveyed to him. In his grant to Carteret and Berkeley^ 



^1 

the territory is conveyed to them in as fall and ample a manner as 
the same is gr:ujted to him; on takinn; possession of whirli, the 
grantees assumed the powers of {government, under the immediate 
ausjiices of the duke and the crown ; and, in sixteen hui'died and 
eij^hty-two, after a partition had been made between East nnd 
West Jersey proprietors, the duke, in order to confirm the title of 
the East Jersey proprietors, made a new larrant, in which he, in 
express terms, conveys an authority to tlie proprietors, *' to exer- 
cise ail necessary government there, \>ith the same powers, autho- 
rities, jurisdiction, government, and other matters ano things,*' 
which he himself derived from the grant to him. Sliould it be said, 
that a grant of the powers of government from the crown to a sub- 
ject, IS n«»t alienable, yef we apprehend that the assent of the crown 
would cute that defect. That this assent was given, aj)pears by a 
proclamation of Charles the second, dated the 13th day of June, 
sixteoii hundred and seventy-four, wherein he s ys, that •* Wliereas 
our right trusty and well beloved councell(»r, sir George Caiteret, 
by grant derived under us, is seized of the province of New-Jersey, 
in America.^nd of the jurisdiction theret,f, as proprietor of the 
same, we do strictly charge and command all persons inhabiting 
in such province forthwith to yield obedience to the laws and go- 
Tcrnment which arc, or shall be there established by the said sir 
George Carteret." 

A similar recognizance of the right of government, is contained 
in his majesty's letter to the deputy governor of New Jersey, dated 
the ninth <lay of December, sixu-en hundred and seventy-two. This 
right of government, tlius granted and confinied by the duke, and 
recognized by the crown, was in fact exercised hy the prop! letors, 
upwards of tliirty years, till it was voluntarily surrendered by 
them to, and accepted by the crown, in the beginning of the leign 
fit' queen Anne, on which it became a royal government, aid re- 
mained a separate and distinct colony until the revolution, when 
it became an independent state; we therefore think that ue are 
correct when we say, at least for the purpose for which we use it, 
that tlie right of go\ ernment passed with the soil to the New-JerHcy 
proprietors. That it could be the intention of the parties conccined, 
that so extensive a district of country should be separated fro»n the 
remainder of the territory, erected into a distinct C(<l(»ny, with am- 
ple powers of government, the territorial lines of which, nine-tenths 
of its wliole distance, binding on navigable waters, should be con- 
iined within its own shores, and so shut (»ut from navigation, the 
free use of which being essentially requisite to its existence and 
prosperity, cannot, as we apprehend, be easily conceived of, nor 
for a moment gain credit with any impartial man, acquainted with 
the history and geography of the country. When, however, we look 
into the grants themselves, we find this riglit abundantly reci»g- 
nized, and in one of them in express terms provided for. In tlio 
original grant from the duke of York to Berkeley and Carteret* 
we find this strong and impressTve language: — '* And also all W- 
vers;) iBiufis^ minerals^ yiooihf fishing f bawkingy hunting, and fowl- 



22 

ine:, and also all other royaWes, p. <>fits, am! rommofVities, and liere-^ 
ditamerits whatsoever, t.» tii«^ sau! Ia;»d a.-d piemi^fs i>eloii;,:i.'!„ or 
in Hty wise appprtaininj;, with the i- and fxeiy of tht-ir ajipu 'e- 
ratires, in as full and ample a maiinei- as the same was ir'<^«»'<'' to 
the said duke of York." 

Can it be said, witli le.^al pro|)nety, that the froe U'-<e u' wH ra- 
vi^able waters washin,^ the shoie^ of an i»,depe» dt nt r( h.t.y. i'- rot 
app'Ttaining to the teri*ito>y, and anionsr the regalia of the rrov n 
expressly .granted? The settienient of New-Jer'.ey m ;>s f(;si»'. ed -nd 
cncoura,ged by the duke of York and the rrowi-,, f«>r the extens««»n^, 
protection, and benefit oC the empire. Can it rea'-onahl} be vupi 
posed, that it was intended to be.ffuile the first settlers there, ;<'!d 
then shut ihem ont from the navigable waters adjoining: tiw^r 
shores; that it thej took an oyster in front of their land-, ti-y 
were made liable to be dragged before the tribunal of a neigi!l<<)r- 
ing colonj as trespassers? We think this cirrunistance, alone, suf- 
firient to shew that it couW not be the understanding of the parties 
at the time of the contract. Bnt what |,uts this question beyond all 
doubt, is the words in the confirmatory grant by the cl«jke of York 
to the East Jersey proprietors, in sixteen hundred and eighty-two, 
before jnentioned ; this being made to explain former grants, and 
confirm the tit'e, hath the following additional clause :— ♦* As also 
the free use of all bays, rivers, and waters leading into, or lying 
between the said premises, or anj of them, in the said pa- 1 of East 
Jersey, for navigation, free trade, fishing, or otherwise." Here is 
a complete recognition of tiie right of tiie New-Jersey proprietors 
to the free use of the waters leading into any part of the colony, 
for fishing, trade, &c. In con'^equence of this grant, thus made and 
explained, the lords proprietors, grantees under the duke, acting 
under his auspices, protected, countenanced, and encouraged by 
the ci'ovi'n, held out to the adventurers into the colony, in a sf't of 
articles of agreement made witli them, in the nature of an original 
constitution of colonial government, called the grants and conces- 
sions of the lords proprietor s, and dated sixteen hundred and sixty- 
four, among other things, '* th »t the assembly should have power 
to create and appoint such and so many ports, harbors, creeks, and 
other places, for tlje convenient loading and unloading of goods 
and merchandise, ships, boats, and otiier vessels, as shall be expe- 
dient, witli such jurisdiction, privileges, and franchises, to such 
ports, &r,, belonging, as they shall judge most conducive tu the 
general good of the said plantation or province." It was also agreed 
*«that the Inhabitvintsof thesaid province have free passage through 
or by any seas, bounds, creeks, rivers, or rivulets. &c., in tlie said 
province, through or by which they must necessai'ily pass, to come 
from the main ocean to any part of the said province ;^* and to in- 
duce adventur<'rs, the lords [)roprietors published, in England, an 
account of the situation of the colony, shewing its advantages ; and 
among other things say, ** that for navigation, it hath these dvan- 
tages, not only being situated along tiie navigable parts of the Hud- 
son river, but lies fifty miles oa the niaiu sea/' 6cc. j aud again. 



23 

<*it ^pins: considerably peopled and sifuafe on the coasts, "with 
cnti\eiiieiit liarbni's, pioper for such as iii(!iiicto fishery, the whole 
coast and every harbiM*s mouth belli!;; fit for it." 

We are aware that the victs of the buds proprietors, and the cn- 
coura^^emeot Ijeld out bv them to the fiist settieis, are in)t lecjally 
binding on any otheis than themsehes and representatives ; but we 
appre!/en(l that all this h^\y.^ done under the eye of the duke, and 
within the hearinj; of the kin.s;, by tiie friends and favorites of each, 
is strong exidence of tlie nnriei'standing of tlie parties at the time 
of the contract; a«id we apprehend that cotemporaneous exposi- 
tions are weishty in Ihw. On this head we will further observe, 
that at the time that the propi'oprietors were about to surrender to 
the crown, in the reiun of king William, tiiey stipulated, among 
other things, that they should be entitled to wrecks and royal fish 
that should be forfeited, found, or taken within East Jersey, or by 
the inhabitants thereof within the Neas adjacent, to remain to the 
proprietors, with all other privileges and adviintages, as amply as 
in tiie grant and confirmation to them, of the fouiteenth of March, 
sixi^en hundred and elglity-twii, (that is, the confirmatory grant 
of the duke of York, before mentioned) to which the lords commis' 
sinners of trade and plantations made answer, "that the right ac- 
cruing to the piM'prietors Irom the seas adjacent cannot be well 
cii cumscribed ; and tiiat the grant of sixteen hundred and eighty- 
two, ought to be well considered, and such particulars therein as 
are proper, may be allowed of;" that is, as we appreliend, such 
things as did not concern the right- of govcinment, which were 
about to be surrendered. All this added to the reasonableness and 
propriety of the thing, must, we think, force irresistibly on the 
mind a conviction, that the king, the duke of York, and all parties 
concerned in the transaction, understood that the inhabitants of 
New Jersey, as a separate independent colony, was to have the 
free use of the Hudson river and all navigable waters washing 
their shores, with convenient access to the sea, comprehending in 
which, the right of erecting and establishing docks, wharves, piers, 
and p<»rts, any where on or adjacent to their own sliores. When 
we speak of a separate independent colony, we would be under- 
stood to mean, separate and independent of any otiier colony, but 
not of tlie crown. This, tlierefore, being the intenfion of the grant, 
the nature of the transaction, and understanding of all parties con- 
cerned in interest, and, as we apprehend, according to the general 
principles of law arising on the subject, the practice hath been 
correspondent thereto ever since. 

For, we think, xNe may with perfect correctness state, that as 
far back as the memoiy of man extends, or any other evidence can 
be adduced, to the present hour, the inhabitants of New-Jersey 
have used, and uninterruptediy exercised the right of erecting and 
establishing docks, wharves, piers, ferries, and fishing weirs, iw 
front of their lands adjoining Hudson river and all other navi- 
gaule waters, and ha\e uninterruptedly used the waters of the 
Sudsen river, and the sea adjoiuing aadcoutiguoua to their shores.. 



for the purposes of navi.^ation, trade, fisliiiig, &r., iit the same 
rnannci' as any other American colony did use. occupy, and enjoy 
their own shores, and the navigable waters adjoining and contigu- 
ous to them. Independent of any grant, act, stipulation or agree- 
inerst, we are, from the nature of the transaction, led to consider, 
that, in settling and colonizing the wilderness of America, every 
district of country erected into a sepaiate and distinct colony, 
Avith the powers of government, either royal or proprietary, be- 
came entitled to the use of the navigable waters by which tliey are 
bounded, as part of the territory and domains of the colony, sub- 
ject, however, to the geneial jurisdiction of the crown, made for 
the purposes of trade, revenue, and defence : that the several colo- 
nies, in respect to each other, were wholly independent, and placed, 
in respect to their relative rights, in the situation of independent 
territories. Being, then in j)ossession of these rights, as we ap- 
prehend, by exjiress grant, by the understanding of all parties con- 
cerned at the time of the grant, and the general principles of law in 
respect to the same, and having ever since actually exercised and un- 
interruptedly enjoyed them, we are at a Joss to conjecture on what 
ground or foundation the 'itate of New- York could build up a claino 
adverse to them. We apprehended that there existed some grant withl 
a date anterior to the settlement of the country, and transcending 
all our lights; but, on the most diligent inquiry, we have not been' 
able to discover a syllable, in writing or print, on the subject, un- 
less the charter of governor Montgomery, in 17S0, sixty-siX years 
after tlie settlement of the country, and the vesting of our rights,' 
can be considered as such. Tlic cliarter of governor Dung^n to the 1 
city of New- York, in 1688, and in the reign of James the second, 
Avho was formerly duke of York and proprietor of the province, 
cx|)ress!y limits the juiisdiction of the city corporation to low- 
water mark on tiieir own shore ; and thus circumscribed, it re- 
mained until the year 1730, in the reign of George the second, 
•when governor Montgomery, desirous of encouraging tl»e conimer- 
cial city of New- York, by endowing it \^ ith large extensive terri-^ 
tory and jurisdiction, renewed the ancient charters, and extended 
the jurisdiction of the city corporation, in the first place to Long-I 
Island, and from thence across the river, taking in the small islands! 
in the same, when, with cautious circumspection, he approachesi 
the Jersey shore, in the language following: — ** To low-waterl 
mark on tlie west side of the North river, or so far as the limits^j 
of ojir said pi'ovince extend there, and so to run up along the west 
Bide of said river, at low-water mark, or along the limits of our 
said province, until," &c. 

Whether it is intended to set up this charter of Montgomery asj 
an evidence of the line of the province of New- York extending to| 
the Jersey shore, we know not; we think that it evidences the 
contrary — for, if the line of the colony at that time extended to 
low-water mark on the Jersey shore, governor Montgomery Wfuild 
never have set it afloat by the equivocal language made use ot in 
his charter.- The utmost that caa be said of this charter is, that It 



25 

extends the jurisdiction of the coipnration of the city of New-York 
as far as the. lisnits of t!ie colony west. The province of N'"\v. V(»rb 
was iiwT enlar^iti by this chmter, nor is Jt any evidence of the ro- 
lotiial line; — it says no nioic th.in this, if tlie line of the province 
ex*^end to low- vvatee mark on tin' Jersey shore, then, and ui linit 
case, the jurisdiction of the corporation shall extend tlu^re ;ilsoj 
and if not, tl)'^,n to the line, wheiever it may be. If, instead of low- 
water maik. it had said, to Arthur Kui! bay and Hackensark li- 
ver, it would have been precisely the sanje thing; the question, 
where is the lit)p of the province, would have bem whf)l)y untoufh- 
ed and undetenninfd by it. The charter of Montgomery, we think, 
proves conclusively, tliai in 17S0, sixty-six years after the grant 
of the duke and t!ie settlement of New-Jersey, that there had been 
no grant, deed, charter, or other instrument of writing, made to 
the province of New-Vork, designating the low- water mark on tho 
western shore of Hudson river as the western line of the province. 
We understand tliat the slate of New Y(»rk entertains an idea tiiat 
the colojjiiil government i»f New-Yoik was placed in the siioes of 
the duke of York, and became liis representati\e when this notion 
took its rise, or on what evidence its legal existence is grounded, 
is wholly inconceivable to us. 

In an opinion delivered by Mr. Richard Harrison, at the request 
of the corporation of the city of New- York, in May, 1804, Mr.. 
Harrison says, "that it is well known that so much of t!ie land 
between Connecticut river and Delaware bay as passed by tlio 
giant of the duke of York, and was not conveyed to the proprie- 
tors of New Jersey, reverted to the crown upon tlie accession of 
James the second.'* The colony of New York must, then, not only 
have been the representative of the duke, but also of the crown. 
"We look upon all this as injaginary ; — hut supposing it was real, 
and we were contending with the representatives of the duke of 
York and the crown, tiie representatives must surely be bound by 
the acts of their principals. In the grants (tf the duke, afterwards 
confirmed and explained by the crown, the facts are simple, and 
capable of being drawn in a small compass. The right of soil anil 
goveiiiment being ir. the duke of York, he formed a trat t of land» 
lying westwatd of Long-Island and Maiduittun's island, iiito a 
colony, and another tract of land, lying on the east of the Hudson 
river, and including a northern district of country, into another 
colony ; the two colonies to build docks, wharves, piers, erect fer- 
ities, fisiung weirs, on or contiguous to each of their own shores, 
at pleasure, and occupy ar.d enjoy the river in common. The only 
difference between the two colonies, in this respect, is, that New- 
Jersey isas a written authority for \\I;at they do, and New-York 
has none; that New-Jersey simu'd be placed in a worse situation 
With a written, than Nev^-York without a written title, is to us a 
matter of sui-prise. 

>Ve should think tliat a claim so derogatory to the rights of an 

independent state, and humiliating to the feelings of a i'vee pe< | le,^ 

should have for its basis a more iolid fouadation thaa ^ny tlsiof 

..„ J> 



26 

Tvliicli has yet appeared to us. We can perceive Bothicg, either m 
xht' i>r!.y;in;ii formation or pro,a;:ess of tl>e colonial j^ovoinmtnts, 
that shouli! s;\\€ one colony a superiority over the other, in respect 
to their respective shojes, and the use of the navigable waters ad- 
joining^ tlie same, or to the jurisdiction over them. If tlie colony of 
N<'w York derived any advantages from being a royal g')ver^^^lent, 
\vhicli is a matter we cannot easily conceive of, yet the colony of 
^evv-Jersey, in the commencement of the last century, became a 
i'oyal government also, and continued so until the revolution, and 
ia that respect was on equal ground "with the colony of New-York. 

We are, vi'ith due respect, your obedient servants, 

AARON OGDEN, 
ALEXANDER C, M'WHORTER. 
WILLIAM S. PENNINGTON, 
JAiMES PARKER, 
LEWIS CONDICT. 

To Ezra L'Hommedieu, Samuel Jones, Egbert Bznson, Jo- 
seph C. Yates, esquires, coQjmissioners, &.c. 

September 50, ISC^ 



No. VI, 

Gentlemei;, 

We yesterday delivered to you a written answer io yout- obser- 
vations on the question relative to the construction of the grant 
from the duke of York to lord Berkeley and sir George Carteret, 
and you also delivered to us a number of papers, which we have 
perused and considered, and thereupon find ourselves under the 
necessity of making a further statement in writing, previous to 
the intended verbal conferences between us. 

We have already stated, in effect, that we conceive the subject 
of the present reference to be a question of boundary, and resolving 
itself into three questions. 

Whether New-Jersey is to be restricted to high-water mark? 
Or whether she is to extend to low-water mark? Or whether she 
is to extend to the channel ? All depending on the above grant, 
construed as if it had been immediately from the king: hence if will 
be perceived that we do not consider the right of New-Jersey to 
«se the waters in question, separated from her claim to boundary 
or jurisdiction, as iu controversy 5 on the contrary, we du not sup- 



pose ourselves authorized, inuch less Ijeltl, to contend for a right 
in Ncw-Y.)ik to ajjptopri He the ^lsc of tliose waters to her own in- 
hal)itaMis, or, as it i^s nsiially cx}>re.sse(l, cilizens, to ti»e exclusion, 
or ill any manner to the prejudice of the citizens of any other state. 
In answer to the suj^gcsiion, that by the grant the i-ie;ht of go- 
vernment, or, as we have expressed it, tlic right of jurisdiction. 
passed, with the soil, to the Ni'W-Jersey proprietors^ and the dif- 
ference thcrt'by occasioned, as to tlie presumed interest of the par- 
tics, or, in other words, as to the construction of the grant, we 
would state, thai the giant is whoUy incompetent, in teiins, to 
create or convey ^ right of jurisdiction. It contuins uo tvords of 
grant more operntive than are to he found in every other grant 
from tlie duke, and to refer particularly to the grants for th«' town- 
ship of Harlaem, on Manhattan Island, and the township of Brook* 
lyn, on Loiig-Island, the former being bounded, for at least ten 
miles, oi» the ILidson, Spit Den Duyvel, Harlaem, and East ri- 
v(;^s, and the latter, for at least throo miles, on the last river j and 
yet, as to both the land between liigh and low-water mark, wa« 
f\ftrrwards granted to the corporation of New York : — as n^ual, it 
contains man} words altog* ther in >perative, and such as that a 
perfect estate in the soil or territory, comprehending the rivers 
^vitl^in it, would have passed without tlieni, and certainly none of 
sufficient legal import to pass a right oi' jurisdiction. But admitting 
the giant competent, in terms, to pass an indei)endent right of ju- 
risdiction, another question still lemains: was it competent for him 
to pass it as to a parcel of the territory ? He doubtless might alien 
the tcnitory granted to him in parcels to others; but it will not 
thence follow, that, as to the right of jurisdiction granted to him, 
theic was not always to be urdty. if we may so expi-ess ourselves, 
even should it at times happen to be vested in a plurality oi natural 
persons not unanalogous in this respect, as if it had been granted 
to a corporation, so that neither he rior his heirs or assigns could 
pass all independent or distinct right 6f jurisdiction to another, over 
any particular parcc/, and the general right of jurisdiction originally 
over the whole territoiy, thenceforth, as to such parcel, to cease, 
and for this obvious reason, that if a distinct right uf jurisdiction 
could be passed as to one parcel, it might as to rufire, and there be- 
ing nothing in tiie original grant from the king to limit the vuvi- 
her, ami the territory or space granted by it being infinitely divi- 
sible, the several and distinct jurisdictions or governments, or so- 
vereignties, however they may be most aptly tcimed, might be 
numberless; but further, there not being any thin.a: in the original 
grant restrainitig a grantee, to whom a right of jiirisdiciiqn over a 
2)arcel of the territory had jiassed, to pass to his alienee of a parcel 
of such parcels, and such second alienee again on an alienation of 
a parcel of the [)arcels aliened to him ; also to pass a right of ju^ 
risdiction to his alienee, and so on, whatever may be the number 
of the several successive alienations of the respective lesser parcels, 
ad infuituiTif so that one alienation of the right of jurisdiciicnf az 



to a parcel, woald defeat the grant altoj^ether, as to tbe vigh\ of 
'fnrh,diction intended to be cirated and j2:!iu)trd by it. The {!.n-tition 
beivv en the |)roi)rietors, it is ti'ue, assumes it that t!te right ofjU' 
risdicfion., equally with the territory, waa partiMe, tlie ji:<)veniriiint 
over each moiety becomins: thereby dis'inci and independrvt ol the 
j^oviMMunent over the other moiety, and the e;rant or further assu- 
rance frojn the duke to sir George Cartej-et, the grartdson, of the 
10th September, 1680, and under which it would seein his execu- 
trix, the year thereafter, set up a claim to Stateii-lsland, also as- 
sumes it, that in the partition the pr<>])i ietors had ceased to hold 
iogetherf as we!! the ri^ht of jurisdiction as the territoiy or land, 
and the duke accordine^iy tyrants to sir George Carteiet, the 
grandson, and in full and in express terms the righf ofjurhdiction 
over his puj'part, wiiat was aj2;reed between the parties ^^o tlie par- 
tition, should tliereafter be called East JVerv- Jersey, Wc are, how- 
ever, willing to waive all these questions, and are ready to admit, 
that as soon as the conquest of the country from the Dutch came 
to the knowledge of the proprietors, they actually established and 
exercised a government over the territor-}- granted to them, and, as 
itnd«'}= a right or power contained in the grant from the duke, that 
the gover-isment, so establislsed and exeicised by them, was recog- 
jrlzed by the inlK^bitants and the governnjcnt of New-Yo^ k, by the 
ciuke, ar)d by the king ; and so far it was a government dc jure, or 
legitimate, hut tliat in another, and equally just sense, it was a 
government rfe /(KC^o, only as founded in mere ■practice under the 
grant; and inasmuch as such recognition was of a governmeiit cer- 
tairdj not including tlie Oyster islands and Shooter's Island, anc« 
there being no soatter, either o^ fact or of laiv. by wiiich a houn- 
dai J could i>e assigned to it, inierniediate betw<-en those islands 
and the western shore, the recognition was rirfiially of go\ em- 
inent, whose eastern boundary or limit was high water mark. 

With respect to the general fact, that New -York has always 
cxer( ised over the waters between the shores of tlie two states, 
and the fact, tiiat the mouth of the river Hudson was at or near 
Be(llov%*s Island, as far as they may be supposed to be in the 
]inow ledge of any persons now in life, are so within the knowledge 
of tw'o of us, as that, in course of the discussion, we shall assume 
them as pioved ; name'y, that, from their earliest recollection, 
there has always been a reputatior) or understanding, that the 
Tvhole of the waters of the liver Hudson, and of the bay between 
Staten-Island and Long Island, were witliin the actual jurisdiction 
01 New-\ork5 that there was not, however, any precise reputation 
or understanding either way, wiiether such juiisdiction extended 
to high-water mark, or was confined to low-water mark on the 
aiiorc of JSew^-Jei sey ; that, as to the waters between Staten-Jsland 
and the main, there was t)0 reputation or understanding as to a 
boundary or lir.e of jurisdiction; that the citizens of New-York 
•ind Ne\ -Jersey had a free atjd common use equally of the waters 
r:i question, to take fish within the saiiif;, and for every other pur • 



pose ; and that, arcordinj^ to llio common conception, v,hen a vessel 
v/as below Bedlow's Island, slie was said to be in tiie bay, and 
when above it, in the Xortli river. 

We irmain, with due respect, 
your obedient servants, 

EZR\ L'HOMMEDIEU, 
SAMUKL JONES, 
EGBERT BENSON, 
JOSEPH C. YATES, 

To Aaron Ogden, Alexander C. M'Whorter, William S. 
Pennington, Lewis Condict, and James Parker, esquires, 
comniissioners, &c. 

Oefnber 1, 180r. 



Ko. VII. 

Gentlemen, 

Permit us further to submit — 

I. Whether it must not be intended that the duke con!)idered the 
Hudson's river ending at the point wheie the main sea commenced, 
or otherwise, can it be intoided that he meant to leave a chasm in 
the line of the eastern boundary of JNew-Jersey. 

li. Whether the duke intended the Kill of Kull as part of the 
rr.ain sea, under the follDwing considerations : — 

1st. That the word Kill mcins river, and cannot therefore be 
considered as part of t!je main sea. 

2d. The Hudson's river does not empty itself into the Kill of 
Knil. 

3d. The course of the Kill Is east and west, and not north and 
south, and consequently would form a southern, and not an easteru 
boundary. 

4th. That the waters of Rarltan bay, extending westward from 
Sa»»dy-Hook, would form a northern, and nut an eastern boundary. 

III. ^'^ hetlicr the common law constructi'wi of grants that we 
have submitted, will not be sufficiently reconciled with the mle of 
construction, as understood in New-York, in o)-igi»ial gi-ants there 
oy a recollection that the duke came to the cii.wn in 1684, after 
which all such grants might be considered as royal grants; and 



whether, by this considpration, v^-e may not avoid the dilemma of 
puttirg aside the lex loci of New- York or the common law of the 
realm, as understood when the e;rants of the duke were made. 

We remain, with respect, your obedient servants, 

AARON OGDEN, 

WILLIAM S. PENNINGTON, 

ALEXANDER C. M'WHORTER, 

JAMES PARKER, 

LEWIS CONDICT. 

To Ezra L'Hommedieu, Samuel Jones, Egbert Benson, and 
Joseph C. Y^tes, esquires, commissioners, &c. 

October 5, 1807. 



No. VIIL 

Gentlemek, 

In answer to the two first questions you suhmitted to us yester- 
day, we say, that as tl)e grant from the duke expresses the south- 
ern boundary by the main ocean, and the eastern by tlie main sea^ 
it is to be presumed that the terms, though thpy frequently have 
the same, yet, as used in the grant, were intended to have different 
significations, and which accords with the fact, the bay between 
Sandy-Honk and the Narrows may be denominated sm, but to de- 
nominate it ocean would be a forcible mode of expression which the 
occasion only miglit perhaps tolerate. The v/ater between New^- 
Jersey and the western shore of Staten-Island is certainly neither 
river nor creek^ in the strict and most correct use of the terms, but 
is, what its present name properly imports, a souncU which is an 
arm of the sea, being a passage, and in that sense may be consi- 
dered as sea, and it appears that the instant tiie question occurred, 
■whether the appellation of river or sea was to bo applied to it ? the 
latter was preferred as the more proper, and the error in the pre- 
vious Indian deed coi-rected in the subsequent formal grant by the 
government accordingly. Kill van Kull, consi«Iered as a continua-, 
Hon of the passage by the sound to the bay, ma} also be denomi- 
Diitod sea, and at the same time, v.hcn considered as the passage 
betweeji the bay and the Jlchfcn Kul, or Back Kul, or bay now 
New ark bay, it may be also denominated the Kill, and so the JCdl 
of the KulL The Dutch word Kill has been used in this country 
without any precise or definite meaning, as will be perceived when 
it is mentioned, that the Mohawk river was called the Maquaar 
Kill, the passage between the Hudson and Harlaem rivers, round 
the northern point of Manhattan Island was called Spit Den Duy- 
vel Kill, and New- ''own creek, an arm of the East river, dividing 
t\\{' ' ounties of King's and Queen's, on Long-Island, iov some 
miles, and no stream issiijing into it, or passage ifrora it, was called 



31 

Mispat Killf 63 that the sense in which it is to be understood must 
always be accoidine; to the subject matter. 

It will, however, be perceived that Kill van Kull is wholly with- 
out the question ; for if the boundary is to pasv thiough the Sounds 
and wot through the JSTarrows, then it, of course, must pass down 
throui^h Kill van Kull to reach the n'outh of tl;o Hudson, and if 
the line is to pass through the JSarrows, then Kill van Kull, and 
it can have no possible relation to each other; so that either way 
the inquiry, whether Kill van Kull is to be declared an arm of the 
sea, or a river, or a creeks is useless. 

That the mouth of the Hud-;on is at its confluence with the East 
river, we might merely relrr t*. Vnn Der Donck, and to the state- 
ment we have delivered, tliat s h as been the common conception 
in regard to it hitherto; but, in addition thereto, we conceive our- 
selves warranted in asserting, tliat so it exists in nature, though 
we at the same time admit, that for legal or artificial purposes, and 
such as right and justice w')uld require, the river itself might, con- 
3tiuctively, be considered as commencing not only at the Narrows, 
but even at Sandy-Hook, the enti-ance into it fsom the ocean. As 
to the objection, that the course of Kill van Kull is east and west, 
and that the waters of Raritan bay extend west from Sandy-Hook, 
so that the Kill would form a southern, and the bay a northern 
boundary, we answer, t!iat supposing the ocean to be the southern 
boundary, then a line from S;indy-Hook aloiig the shore of Raritan 
bay through the Sound and Kill van Kull, and uj» the Hudson to 
the degree of latitude, we conceive may, with propriety, be de- 
nominated the eastern boundary, notwithstanding the deviations 
of some of the curvatures or courses and distances in it, from its 
general northerly and southerly direction. 

In answer to the third question, we would mention, that we do 
not know, neither have we any reason to believe the distinction you 
surmise between the grants of the duke before, and those by him 
after he came to the crown, has ever obtained : referring, therefore, 
again to the subsequent special grants which have been and still 
Continue to be made for the soil below high-water mark, as proof 
or example, we will only further state, they have all taken place 
without discrimination, as it respects the prince or person from 
whom the grants for the adjacent upland were obtained, and pro- 
ceeded on one uniform simple assumed principle, that the grants 
for the upland are within the prerogative rule of construction. 

We are, with due respect, gentlemen, yours, &c. 

EZRA L'HOMMEDIEU, 
SAMUEL JONES, 
EGBERT BLNSON. 
JOSEPH C. YATES. 

To Aaron Ogden, William S. Pennington, Alexander C. 
M*Whorter, James Parker, aod Lswia Condict, esquires, 
commissioners, ice. 

Octohr 2, X80r, 



No. IX. 

Gentlemek", 

Upon leading' your first note, handed ns this day, it has occurred 
to us a«i prnpe to submit to yon t!ie followine^ rottsiderations : — 

lst» Whether the .general question of boundary between tlie two 
states does not involve in it the consideration, whether the high- 
%vater mark or the litfvs on the eastern side of tbe Hudson river, 
be tiie true and le,£:al line of division, equally with the lines of di- 
vision stated by you. 

As you will recollect, in our first communication we urge, that 
the duke, having granted to us all the land lying ;ind being tn Tiie 
westward of Long- Island and Manhattan's Island, gave us ground 
to contend, that the true intetit of the grant was to i'lvest us with 
the soil or land under the water of that river, and the grant con- 
veying also all rivers^ fortifies the idea. And although it may be 
said, that the subsequent part of the grant binds us by the river, 
it is still to be recollected, that if the soil under the water passed 
by a just construction of the deed, no subsequent woi ds in the same 
deed could defeat this right. 

2d. We are by no means satisfied with the opinion entertained 
in New York, tlij^t the grants of the duke of York are to be con- 
sidered as acts of the king, or, in other words, royal grants. 

Sd. We wish not to be undei'stood, that we are contending for 
the use of the waters lying between t!ie two states merely as a 
coiiimon highway, which every alien friend would possess equally 
with us; but tliat we consider them, at least to the Jilum aqvWf as 
within our jurisdiction, and the lar.d lying under them as part of 
the territory and clomains of the state. 

4th. We apprehend it must have escaped your notice, that tlie 
powers of government are conveyed to the East Jersey proprietors 
in the conUrmatnry grant of 1682, in direct and unequivocal terms, 
as fijilv as titey are granted to the duke, for which we refer you to 
an extract of that grant, accompanying this paper, and marked 
I>io. 1. 

5th. As to the competency of the duke to grant an independent 
right of jurisdiction, we apprehend that tlie proclamation of Chai les 
the srcond, bearing daf<' the 13th June, 1674, and also his letter 
of the 23d November, 1683, must have escaped your notice, in 
which t)iis I igl;t is not merely implied, but expre^sly lecognized, 
extracts from which we herewith deliver you, marked Nos. 2 and 5. 
It may be a question, whether, at the common law, the power of 
creating an independent government could be conveyed even fi"ora 
the king to a subject, much less from one subject, in divided parts, 
to other subjects; yet it was done, and subsequently acquiesced in 
by ;ill parties concerned in interest, viz. the duke and the king; 
and New -Jersey th»»rclb(e became an independent colony de jwre, 
as vou candidly admit a recognition by the inhabitants and go- 
Tcrnuient of New- York, was in no wise necessary to Baake th«^ 



right legitimate. It was not in this point of view alone that we 
meiitiont'd the grant of the powers of government, hut to shew that 
it was the intention of the duke, at the time of the grant, to erect 
all the territojy tying westward of Long Island and Manhattan's 
Island to the forty-first degree of north latitude into a colony, witli 
•the ac«-iJstomcd powers of government, and that therefore the grant 
was entitled to a different construction and consid<*ration as to the 
navigable waters adjoining the* territories contained in it, than if 
it had been a grant of a small tract of land unaccompanied with 
such intentions. 

6th. We do not admit it to be a fact, as advanced, that New* 
York has ever exercised the exclusive jurisdiction of Hudson ri- 
ver, nor do we think that reputation or common understanding 
will be sufficient authority to assume that fact. We think we are 
correct when we say, that the reputation and common understand- 
ing of New-Jersey was contrary and repugnant to the reputation 
and common understanding in this respect in New-York. Besides 
West-Chester county, we understand was, previous to tjje revolu- 
tion, (and we presume is so still) actually boun<led on Hudson ri- 
ver, and, as we apprehend, could not, in any view of the subject, 
have jurisdiction beyond thejiiumaquce. 

It may be true, that New-Jersey, while a colony, and since it 
has become an independent state, has had but little cause to exor- 
cise jurisdiction on Hudson river; but we appreheinl that the quau' 
turn or degree of the exercise of a right does not affect the right 
itself. Whenever New-Jersey hath had cause to exercise jurisdic- 
tion over the wharves, docks, ferries, fisliing weirs, &c., beyond, 
low-water mark on Hudson river, it hath done it. And it is a fact 
of public notoiiety, that a man has been indicted and tried for 
murder committed on Hudson's river, as within the body of tiio 
Ctjunty of Bei'gon. 

AYe arc, with respect, your dhedient servants, 

AARON OGDEN, 
ALEXANDER C. M*WHORTER, 
AV ILL I AM S. PENNING ION, 
LEWIS i'ONDICr, 
JAMES PARKER. 

To Ezra L'Hommedieu, EgbetxT Benson, Samuel Jones, 3c^ 
SEPii C. Yates, esquires, commissioners, &c. 

October 2, 1807, 



No. X, 

Gentlemen, 

It rhe commissioners on the part of New-York and New-Jersey 
sb<)ijl<! unfoituoately disagree upon the constiuctioii < f 1ii»* sf vetal 
grants of tlie duke of York, still it is hoped that il:e lo(h)win«» con- 
siile.-ations, whirl) aie wholly distinct from those heretofore sub« 
mitted, may prove sufficient to produce an agreement in another 
partirul-r, to wit :— 

That the jurisdiction of New-Jersey must be co-extensive witlj 
its natural territories, as understood by the laws of nature and 
nations. 

The followin,^ may serve to illustrate and prove the foregoing 
projiositions. 

I. That New -Jersey possessed all the rights of a free, sovereign, 
and independent state, as fully and completely as any nation on 
thp globe, except so far as she may have delegated rights to the 
general government of the United States, that, in virtue of herso- 
▼er<Mgnty or empire, (unless some limitation be shewn) she has 
jurisdiction over all the territories which by natural law belongs 
to it. and a perfect right to all powers within such territories that 
are ? ccessary for her safety and presei vation.* 

II. Tliat where two nations border each on a navigable river 
that (iinless some reason of preference can be shewn) the jurisdiC' 
tion of each extends to the middle of the river.f 

II L That the coast of the sea, the shores, the bays, and harbors 
belong to the jurisdiction of the adjoining country; they are, as it 
were, ihe gates and inlets to such country, and necessary for ita 
safpty and oommerce,:|: and, consequently, a part of the country 
and manifestly within its territories, and under the empiie^ of the 
government established therein. 

IV. That th«' empire of a country and the property in its soil 
are not inseparable in their nature, even in regard to sovereign 
states; and nothing prevents the possibility of property belonging 
to a nation in places not under its obedience, in which case they 
possess them in manner of individuals.^} 

V. [ hat if the foregoing positions be true, it will not follow that 
the j«uisdi{iion of our shores and harbors belong to the state of 
N«vv-Yo« k, although the property should belong to any individual 
or corporation within that state, or even to that state itself.** 

VI. That the king of Great-Britain possessed, not only the pre- 
perty in all navigable rivers, but by his prerogative, claimed and 
exercisi'd (among his regaliaff) jurisdiction over them, and over 
all shores tielow high water mark, and over all ports and harbora 
whatsoever within his American colonies. It is therefore evident 
that if the grant to the first settlers of New-Jersey had contained 



* VaUel 6. + Ibid. 108, M Black. Com. 264. § A'aliol 1 IG. Puff. 383, lib. iv. c. 4& S 
V«WcUi8. t Ibid. 258. •* Ibid. 118-258. tt 1 Black. Cora. 164. 



35 

an express limitation to high- water mark, it would only follow 
that the property, as well as the juiisdictimi over the subject mat- 
ter now in controversy was retained by the duke, and again re- 
sulted to the CFOwn wIhmj he became king of England, and would 
be no more than if the crown had retained originally the property 
and juri'jdiction of a large lake in the centre of New-Jersey. 

VII. It is believed that the crown of Great-Britain, by the lords 
commissioners for trade and plantations, exercised the actual juris- 
diction in and over -.'11 harbors and rivers within her colonies, in- 
dependent of any colonial assemblies ; in which case, when the in- 
dependence of New-Jersey was acknowledged, the king of Great- 
Biitain impliedly yielded to her all the jurisdiction generally, 
Avljirh he h;«d before exercised in, over, and within tlie natural 
territories belonging to the country called JS''ew -Jersey, 

VIII. That New-Jersey having, as before mentioned, on her 
various sides many valuable bays, harbors, and ports, naturally 
fornjing a part of her territory, and essentially necessar) for her 
safety and the establisl»ment of her commerce, we do not perceive 
how any principle can be admitted which may abridge her sove= 
rcignty over her shores and the adjoining waters. 

We remain yours, with due respect, 

AARON OGDEN, 

WILLIAM S. PENNINGTON, 

ALEXANDER C. M'WHOUTERy 

JAMES PARKER, 

LEWIS CONDICT. 

To EsRA L'HoMMEDiEU, Samuel Jones, Egbert Benson^ and 
JosjEPir C. Yates, esquires, commissioners, &c» 

October 2, 1807. ^ 



No. XL 

Gentlemek, ^ 

A recurrence to the grants from the duke does not enable us to 
find where he expresses the southern boundary to be the main sea» 
In his release of 1664 to Berkeley and Carteret, his description of 
the boundaries of New-Jersey is as follows, via.'*' Bounded on the 
east part by the main sea and part by Hudson^s river^ and hath upon 
the west Delaware bay or river, and extendeth southward to the 
main ocean as far as Cape-May at the mouth of Delaware bay, 
and to the northward as far as the northernmost branch of the said 
bay or river Delaware, which is in forty-one degrees of latitude, 
and crosseth over tbence in a straight line to Hudscni's river, ia 
forty-one degrees of latitude." In this deed of confirmation to the 
twenty four proprietors of East New-Jersey, of the 14tli March, 
1682, is the following description:— **AU those easterly paits or 



36 

sliares and portions oF the said wliole and entire tract of land and? 
premises before mentioned, extending en f ward and vorthwar^ 
along the sea coasts and the said liver called Hudson's river, tVom 
the east side of a certain place or harbor lying on the southerly 
part of the same tract of land, and commonly called or known in 
a map of the said tract of land by the name of Little Egg-Harbor, 
to that part of the said river called Hudson,'* &c. 

Besides, the map of Nev.-Jersey manifestly shews the ocean to 
he tlie longest part of its eastern boundary line, and that tjje course 
of the sea caast is almost north and south from Little Egg Hrrbor, ; 
and is as directly so as the Hudson's river itself. 

Whence it seems to be manifest, that the duke of York did not 
intend to use the term main sea in a different sense from the sy- j 
iionymous term ocean; but, according to the real fact of the c; se, , 
that is to say, the ocean lying on the eastern boundary, agreeably 
to the common and legal acceptation of the term niaiyi sea. 

That we are ready to admit, that the Raritan bay, the Sound, 
and (he Kill of Kull may be well denominated arms of the sea, 1 
%vhjch may be said to extend from the fauces terra as far as tiie 
tide ebbs and flows. But we do not perceive any neces«jity to de- 
part from the express terms of the grant, and leave a direct north- 
erly course through the JVarrows, wljich is equally an arm oi' tlic 
sea, in order to deviate to a westward course from Sandy Hook, 
round Staten-Island ; which, instead of affecting any manifest in- 
tention of tlie duke, seems directly contrary to it, if any n>eaning 
is to be collected from the description of the course as being norths 
and the situation of the land as lying westward of Manhattan 
Island and Long-Island, and not as lying v\estward of Manhattan 
island and Staten-Island, which otherwise would have been his 
mode of expression. 

We cannot yet perceive why the common law construction of the 
duke's grant, which is manifestly according to his real iviterest, 
should, in a discussion like the present, be given up, in oi-der to let 
in a narrow prerogative construction, which is defined to be '* law 
in case of a kingy -which is not law in case of a subject ;^^ which eon- 
struction, if canied to the extent under the arguments w hich have 
been delivered to us, ousts Nljw-Jersey from all jurisdiction on her 
shores lying adjacdht to Delaware river, Delaware bay, the main 
sea, the Raritan bay, the Sound, and the Kills, and from tlicnce to 
the forty-first dcgiee of latitude on the Hudson river. 
We are, gentlemen, yours, &:c. 

AARON OGDEN, 

WILLIAM S. PENNINGTON, 

ALEXANDER C. M-WHORTER, 

JAMES PARKER, 

LEWIS CONDICT. 

To Ezra L*Hommedieu, Samuel Jones, Egbert Benson, Jo™ 
3£PH C. Yates, esquires^ commissioners, &c. 

,Octobtr S, IBOTc 



87 

No. xn. 

OENTLEliEN, 

We have attendod to the propositions contained in one, and to the 
qiiestions contained in the other of your communicatiotis of the 2(1 
instant. 

The propositions, when considered as in the abstract, and with 
some exi'lanations or modifications, and which \vc are jjcrsuaded 
you would adn)it as requisite to render tliem more definite, proba- 
bly would not be disputed by us; but we do not perceive how they 
or the authorities y<u cite can serve as a rule of the law whereby 
to decide the question between the two states, which is a question 
of right or tttie to territory^ com{)rehending not only land but also 
of water and the land covei-ed w ith it, and of right or title both to 
the jurisdiction ;.nd the property^ and arising on a grant or transifcr 
of jurisdiction and property made as under the law of the land; 
the same law by which a former question of boundary, arising on 
the same grant, and between the same parties, was decided. We 
cannot, therefore, consent to resort to the law of nature and of na- 
tions, as a rule of decisio)i. But the case would, from necessity, be 
remanded to its proper /oru?}!. for the law of nature and of nations, 
being, as you have stated it, '* that when two nations border eacU 
on a na' igable river, unless some reason of preference can be 
shewn, the jurisdiction of each extends to the middle of that river." 

'Vhe reason of preference, alleged by New-York, is a better right 
or title by positive law. But, if we were to consent to leave the 
question to be decided according to the law of nature and nations, 
and assuming the fact, that iSrw-York and New-Jersey began to 
exist as distinct independent governments or sovereignties at the 
same instant, and that coeval therewith, and for the period we 
have stated. New York has uninterruptedly, and without any claim 
by New-Jersey, actually exercised or possessed the jurisdiction 
over the waters in questi(tn, surely the law of nature or nations 
tv'ould pronounce that such possession or prescription is, of itself, 
decisive against New-Jersey, and that the ])eace of civilized na- 
tions require that New-Y(»)k should be declared to be at peace as 
to that portion of her territory. — And here we take occasion to re- 
peat, that {\iefactf as to the i^ossession of the jurisdiction, is so ih 
our own know ledge, that it would not be possible for us to surren- 
der a belief of it, no more than it would be (if we may be tolerated 
in the expression) to surrender a belief arising from the evidence 
of our own senses, whoever snight be the witnesses, and whatever 
the number of them, testifying differently; and especially if they 
■were weak and immediately interested, and altiiough upright, yet, 
perhaps, not sufficiently guarded or capable to distinguish betweea 
their wishes and their thoughts. 

The individual act of Mr. Kennedy, in 1746, in purchasing a 
proprietary right, and having Bodlow's Island, which he then held 
under aNew-tork title, surveyed on iU is certainly not only no 



proof of an Jnterruption of the possession of New- York, liut we sus- 
pect the transaction may be ex])!ained when it is recollected, that 
he was, at the time, owner of tlie farm at Ahasimus, bcuileriiijj; on 
the river, and it was not unnatural for him to reason, as it appears 
the proprietors of New-Jersey did, on the application of Palmer, 
for their title to cover his estate on Staten-lsland; and "that it 
^ould be of no ill consequence, but rather of service, to anj claim" 
which he might thereafter be minded to make to the water, or the 
soil under it, in front of his farm. 

The fact you state as of *' public notoriety^ that a man had been 
Indicted for a murder committed on Hudson river, as witlmi the 
body of the county of Bergen," has never before come to our know- 
ledge. On inquiring, we find, that the question, whether t\ie place 
was within the jurisdiction of New-Jersey? was raised, and was 
expressly reserved ; that the trial proceeded, and the prisoner was 
acquitted, the proof not being sufficient; that it was so recent as 
witiiiii two years last, and the proceedings wholly unauthorized, 
even by the law of New-Jersey, for supposing the state to lutvc 
the jurisdiction below high-water mark, and to any distance which 
may be contended for, no part of such distance or space is wi bin 
tlie county of Bei'gen, its eastern boundary being thus described in 
the statute for dividing and ascertaining the boundaries of the coun- 
iieSf and passed as early as 1709-10 — "To begin at Constahle*s- 
Hook, and so to run up aloiig the baij and Hudson's river, to the 
partition point between New-Jersey and the province of New- 
York." — In a former communication, we mentiojied that Kill van 
Kuil was to be considered as a continuation of the Sounds and from 
the above statute we have since discovered it has always been con- 
sidered the bounds of the county of Bergen, from where it comes 
to IVquanack river, being thus described in it: — ** And so to run 
down the said Pcquanack and Passaic rivers to the Sound, and to 
follow the Sound to Constable's-Hnok, where it began." 

As to the intimation, that the duke having granted to lord 
Berkeley and sir George Carteret ^^ Ml the tract of land lyins; and 
hcing to the westward oj Long -Island and ,^1anhatlan*s Island: that 
T{herefore the high-water or liffus on the eastern side of the Hudson 
river might be considered as the true and legal line of division," 
and which, if intended in your first communication to us, escaped 
our notice, we briefly answer, that the grant is expressed in terms, 
in our view, materially different from them, as cited by you. It 
does not grant all the land westward of Long Island and Manhat- 
tan's Island, hut " all that tract of land adjacent to J\*ew- England f 
and lying and being to thv westward of Long-Island and Manhat- 
tan'' s Island, and bounded," &( . 'I'iie tract intended to be granted 
is desia:tiated in general terms, as being adjacent to A'ew England, 
and westward of Long-Islavd and .Manhattan's Island, and finally 
described by special or dejiniie boundaries. 

If the designation had finished with the first member of it, adja^ 
cent to JVew-England, then. perha()s. the whole of the territory 
which the duke held, except the mbiern territory expressed in the 



39 

grant to him to be a part of the main land of J^'ew- England, woulii 
have passed. If it had finisiied with the second meniboc of It, west- 
ward of Lon^-Island and Manhattan's Island, and if the grant it- 
self would not then liave been void for uncertainty, we can suppose 
the western shores of Long- Island and Manhnttan's Island would 
have been its eastern, and the eastern shore of the Delaware its 
western boundary ; but ue cannot imagine the rule or principle by 
which north and south boundaries would have been to be assigned 
to it. When the description, however, assigns boundaries to it by 
special or dejinite terms, as to be distinguished from, or contrasted 
with the preceding general terms, they are to restrain the general 
terms, and confine them to their functions, which was only and 
e.r abundantiy to mention the tract in relation generally to its prox- 
imity lo New-England, and its bearings from Long-Island and 
Manhattan's Island, so that we conceive that the question, what is 
the eastern boundary intended in the grant? as far as it may de- 
pend on the terms of the description, must depend wholly on the 
latter or special or dejinite terms alluded to, without any reference 
to the preceding or general terms. 

The consideration, that New- Jersey is an independent sovereign 
state, does not, in our view, vary the case. She was always so, as 
against New- York, both de facto and dejure, and in the principles 
of the American revolution she was always so de jure as against 
Great-Britain, with this exception, that the prince possessing the 
British crown, for the time being, was her sovereign, entitled and 
exercising the like powers and prerogatives as in Great-Britain,i 
and if consequences in whom the supreme executive power was 
vested, and to whom, as possessing especially {hcjicial powers, as 
tljcy are termed, the powers of peace and war, the duty of n/iegi- 
ance was due, with whose concurrent agency, as a branch of her 
legislature, she could provide for raising armies and maintaining 
navies, and in every other respect provide for her safety and de- 
fence, regulate commerce and navigation, lay and collect duties on 
exports and imports, and tonnage on vessels, naturalize foreigners, 
coin moneys, and assert and vindicate her rights as to boundary, 
and which she actually did as to her northern boundary, except 
the last; however, all the rights and powers here enumerated, the 
indicia of sovereignty, she has, equally with New -York and every 
other state in the Union, delegated or ceded to the general sove- 
reignty of the United States, and is now, perhaps, to be more 
likened to a corporation with certain powers, none more plenary 
than that of life and deaCh for breaches of her own internal peace, 
and she is no otherwise independent than as she holds these pow- 
ers independent of the general sovereignty; but still at the will ol* 
the legislatures or conventions of three-fourths of the several states 
—neither will any supposed change in her condition by the revo- 
lution affect the case. The parliament or legislature of the mother 
country claimed a right to pass laws binding on the colonies. The 
colonists claimed to be entitled to like rights with their fellow 
subjects in Britain^ aud so cot bound hy any taw to which they 



40 

did not assent, or iu effect to be sovereign or independent of the 
parliament. 

Attempts were made to define the nature or extent of the sovc- 
rcij;nty to be enjoyed or retained by the colonies, or to establish a 
fundamental between the parliament and them, and tliey to remain 
members of the empire, theieby to preserve the unihj of it ; all of 
■which failed, inasisuch as they would only have terminated in the 
incongruous and futile mode of government an imperium in imperiOf 
and tiiere being no alternative between an absolute submission to 
the will of the parliament and the empire remain entire^ and an 
absolute independence of such will, and of course a severance of 
the empire, the colonists resolved on the latter. Such is the simple 
principle of tiie American revolution. The question was limited as 
to the parties^ it being between the parliament and the colonists, 
and rjot between the colonists themselves ; and also as to its subject^ 
it being a mere legal question arising or the British constitution. 
"XVc therefore conclude with stating, that the doctrine that any one 
of the states acquired as against any other of them, in consequence 
of the revolution, any territorial rights or an enlargement or ej:' 
tension of territory is inadmissible. 

We remain, with due respect, 
your obedient servants, 

EZRA L'HOMMEDIEU^ 
SAMUEL JONES, 
EGBERT BENSON, 
JOSEPH C. YATES. 

\Q Aaron Ogdsn, William S. Pennington, James Parker^ 
Lewis Condict, and Alexander C. M'WhorteRj esquire^ 
commissioners, 6cc. 

October s, 1807. 



No. xin 

Gentlemen, 

Although it probably was understood that those interchanged oc 
the Sd instant were to close the written coimruMicatiojis between 
us, you will still permit us, in answer to youi's, briefly to state> 
that we have been misconceived if it is supposed that we consider- 
ed the expression main sea, in the grain from the duke, as denot- 
ing its southern boundary ; on the contrary, we co))tend tliat sea 
and oceaiiy as they stand in the grant, are to receive different sig- 
nifications, and that the ocean is its soulhern, and that the sea forma 
-^ part of its eastern Ijf.urnhuy, and tliis i.tej-pretaiion is confirmed 
■>y the partition deed between the propnclor^ in 1676, and the two 



41 

eiubsequent grants or confirmations from the duke, of the 10th Sep- 
tember, 1680. and the 14th Marrh, 1682, in whicli the boundary 
of East New-Jersey, from Little Eg(i;-Harbor to the dcj^ree of lati- 
tude on tlie Hudson, is described '* as extending eastward and 
northward along the sea cofls/ and Hudson's river," and which, by 
the familiar process of redendo singula singulis^ and to tJiat end 
trau-<[)osing the words, may be made to read, *' extending eastward 
along the sea coast, and northward along the fiudson river^^^ aiijl 
then, as it respects the eastern buundai-y, a case of the nature we 
have in a former communication suggested, would arise, in wliich 
the Hudson ought constructively to be considered as commencing 
at Sandy- Hook. One thing is assuredly evident, that the partition 
deed and the two subsequent grants suppose the course of the cofli* 
from Little Egg-Harbor towards Sandy-Hook to be, for a distance 
easterly, and if foi- any it must be the whole distance, there no 
wheri* existing a natural boundary for i^uch a distance less devi- 
ating from a right line than that reach or portion of tlie coast. 

We will only add, that the subsequent use of the term coast as a 
synonyme of ocean, is scarcely to be conceived applicable to a bay 
or other arm of the sea, is decisive that our intei-pretation, as to the 
diiferent senses in which the terms ocean and sea, as used iti tho 
grant, are to be received is correct. 

We remain, v/ith due respect, your obedient servants, 

EZRA L'HOMMEDIEU, 
SAxMUEL JONES, 
EGBERT Bi'NbON, 
JOSEPH C. YATES. 

'To William S. Pennington, Aaron Ogden, Alexandeh C, 
M*Whorter, James Parker, aud Lewis Condict, esc[uire5, 
cominissioiiers, he, 

October 5, I80r, 



No. XIV. 

Gentlemek, 

'rms of the sea and navigable rivers are subject to a ^U3 publi'- 
cum<, a jus privatum, and a jus regiuin. To this last right, singly^ 
we rneant to appl^' tlie propositions arising from the sovereignty of 
New- Jersey, as distinct from all the other considerations we had 
therefoie laid before you. 

We mean explicitly to exclude, under this head, all questions o£ 
right or title to ten itory or property^ as arising from the dukc-'a 
grants, and to confine ourselves merely to thit. j"u6 regiuUi. Lnder 
this explanation, we beg you to cotisider our com mu mention of th^ 
second instant, in reference to this j^articuiar riij;hk 

P 



If it be true, as heretofore stated, that the crown exclusively ex:- 
ercised this jus reghnti (beine; one of the ree;alia) io virtue of i(s 
preroi^ative, through the agency of tl)e lords commissioners of 
trade and plantations, independent of paiiianient or any colonial 
assembly, it seems then to follow, that the rights exercised by 
New-York, of which you speak of your own knowledge before the 
revolution, must have partaken of the nature of the jus jmbliciiiv 
^\u] jus privahnn only, and can have no reference to the jus reginniy, 
v;hich we presume was never out of the crown of Gieat Britain 
while its king was our sovereign. 

Suffer U3 here to refer to the many instances of the jus ■piihlicuvi 
and jus privatum by New-Jersey, wlsich we have before enume- 
Tated, most of which have been within our actual knowledge and 
observation. 

The king, as stated by you, was the sovereign and a componenl 
part of the government of New-Jersey, as well as of New York 
and Great- If ritain at the time of the revolution, whence the con- 
clusion appears tq be necessary, that the jus regium theretofoi^ 
exercised by the king over the shores and adjacent waters of that 
part of the realm called New-Jersey must have naturally devolved 
upon the sovereignty established in New-Jersey, and not upon the 
Govereignty established in New York. 

It is submitted to the gentlemen of New-York, under this view 
of the subject, whether the evidence, to which tiiey have leferrcd, 
of the jurisdiction de facto since the revolution is of such remark- 
able facts, or can in any way amount to that immemorial usage or 
prescription right spoken of in public law, and which would oust 
New-Jersey from all kind of sovereignty and empire in and over 
its shores and adjoining w^aters, provided she had acquired such 
sovereignty by the assertion and vindication of her independence. 

"We remain^ with respect, your obedient servants, 

AARON OGDEN, 
ALEXANDER C. M^WHORTER, 
^VILLIAM 8. PENNINGTON, 
JAMES PARKER, 
LEWIS CONDICT. 

To Ezra LTIommedieu, Samuel Jones, Egbert Benson, Jc 
SEPH C. Yates, esquires, commissioners, &c. 

October 5, 1807. 



No. XV. 

Gentlemen, 

After mature deliberation, and due attention to the written com- 
munications that have passed between us in our late discussion, wo 
are of opinions that according to the tcrpis and manifest intentiori 



43 

of the duke of York, in his several grants (o lord Berkeley and sir 
Geor.a;e Carteret and their assigns, that the eastern boundary line 
passes tiirough the Narrows, and not through the Sound and Kill 
of Knll J* and further, that, in virtue of these grants, as also of so- 
vereignty of the state of New-Jersey, tliis boundary line extends 
usque adfilum aqncs, or the midway of the river Hudson, or otlier 
waters lying between the shores of the two res|)ective states. 

We have to request from you an equally explicit opinion. 

Should our respective opinions be found unfortunately to differj 
then we beg leave further to request from you, generally, your 
genfiments, as to the probability of accommodating our differences, 
by establishing a boundary line more con\ anient to New-York and 
New-Jersey, respectively, at the same time leaving to New-Jersey 
ail her froc navigation, than to run the line according to the opi- 
nions of right that may be entertained by the respective boai'ds of 
-commissioners. 

Yours, with due respect, 

AARON OGDEN, 

WILLIAM S, PENNINGTON, 

ALEXANDER C. M'WHORTER, 

JAMES PARKER, 

LEWIS CONDICT, 

To Ezra L'Hommedieu, Samuel Jones, Egbert Benson, and 
Joseph C. Yates, esquires, commissioners, ^c. 

October 6, 1807- 



Ko. XVh 

Gentleme:^, 

In answer to your note of this day, we can only say, that such 
are the facts, and such, to our minrls, have appeared tiie reasonings 
from them, that we have not been able to persuade ourselves other- 
wise than that New-Jersey cannot lightfully claim Slaten-Island, 
or below the western high-water mark of the waters between the 
shores of the two states. 

Tlie citizens of all the states in the Union have the benefit and 
use of the navigable waters within the jurisdiction of New-York, 
in common and equally free with her own citizens, and the citizens 
of New-Jersey may avail themselves of her existing provisions for 
gratuitous grants to owners of the adjacent lands, for land below 
high-water mark. 

Still any proposition from you on the ground of consulting the., 
mutual and due convenience of both the states, specifying or defin- 
ing a line within which New-Jersey is to have the jurisdiction, 
free in future from the clainas of New- York, to the end that her 



**•* 



citizens may then have the benrfit or use, without unreasonable 
detviment lo others, or appreheisions of evils of a public or .ercne- 
ral nature, and which they cannot have if the jurisdiction of ^{ew■- 
Tork is to extend over the whole of the waters in question, it cer- 
tainly will receive our deliberate, and, we trust, unprejudiced 
consideration ; and at the same time it is submitted, whether inas- 
much, as already with respect to the laws of quarantine, and aG 
the period is approaching when, in evf^-y other respect, a strict, 
and, of course, an expensive police will be requisite over the wa« 
ters in the vicinity of the city of New-York, and that, in order to 
its being effectual, it must be co-extensive with the waters them- 
selves, it will behove both parties to proceed with cautiuii in a 
xnea-^ure of such magnitude, and not to be foreseen in all its con* 
ctquences. 

EZRA L'HOMMEDIEU, 
SAMUEL JONES, 
EGBERT BENSON, 
JOSEPH 13. YATES. 

To Aaron Ogden, William S. Pennington, Alexander C 
M*Whorter, James Parker, and Lewis Condict, esquireH>, 
commissioners, &c. 

October 6, 1807. 



No. XVIL 

GektlemeK", 

Being so unfortunate as to differ on the question of right, and 
you having cast hack on us the necessity of loaking proposals fop 
accommodation, we w^ould ask, whether it would accord with your 
Tiews (should the state of New-Jersey relinquish its claim to 
Staten-lsland) to run the line from the middle of the Hudson river^ 
in the forty-first degree of north latitude, and so down the middle 
of said river through the bay, the Kill of Kull, and the Sound, but 
'in such manner as to leave the jurisdiction of the Oyster or small 
rslands in New- York ? 

Wc remain, with due respect, 
your obedient servants, 

AARON OGDEN, 

WILLIAM S. PENNINGTON, 

ALEXANDER C. M'WHORTER, 

JAMES PAKKER, 

LE>yiS CONDICT. 

"To Ezra L'Hommedieu, Egbert Benson, Samuei. Jones, JO" 
PEPH V: Yates, esjjuires, commiesioners, &c* 

October 6, 1807. 



45 

No. xvm. 

Oentlemen, 

W\ took it for granted, tbat havin.e: declared ourselves definlteljF 
a.fif; Mist the admission of the claim of New- Jersey, as founded m 
riejht, that the propositions of accommodation^ if any, were t'. >ri- 
ginafe on her part. We cannot accede to a proposition hy which 
the middle of the river Hudson, for any distance, shall be th • lino 
dividing the jurisdiction. 

We are, gentlemen, with due respect, yours, &c. 

EZRA L^HOMMEDIEU^ 
SAMUEL JONES, 
EGBERT BENSON, 
JOSEPH C. YATES. 

To Aaron Ogden, William S. Pennikcton, James Parker, 
Lewis Condict, and Alexander C. M'Whorter, esquires, 
commissioners, &c. 

October 6, 1807. 

No. XIX. 

Gentlemen, 

Understanding that no line will be agreed upon by you on the 
principle of an accomniodation of diiferences respecting the eastern 
boundary line of New-Jersey ; and further, that you fannot consent 
to jinake any propositions to us upon the subject, permit us to say, 
that we do not perceive any further utility in continuing the pre- 
sent discussion, unless you have some further communications to 
make us. 

We are respectlully yours, 

AARON OGDEN, 
ALEXANDER C. M^WHORTEE, 
WILLIAM S. PENNINGTON, 
JAMES PARKER, 
L WIS CONDICT. 

'to Ezra L'Hommedieu, Samuel Jones, Egbert Benson, and Josepu 
C. YateSj esquires, commissioners, &c. 

October 6, 1807. 



No. XX. 

GENTLEMEK", 

We can only repeat, that a proposition of a line having for its 
object the convenience of the citizens of New-Jersey will be re- 
ooived by us, and in deiiberatins on it we shall only regard the 



46 

considerations ^e ]ta.m sug^gested of benefit and use to accrue to 
them, of detriment which others may suffer, and of evils to be ap- 
prehended to the whole community, and consequently we decline 
au accommodation on any other .^rounds. 

We are, gentlemen, yours respectfully, &c. 

EZRA L'HOMMEDIEU, 
SAMLEL JONES. 
EGBERT BENSON, 
JOSEPH C. YATES. 

To Aaron Ogden, William S. Pennington, James Parker, Alexan- 
der C. M'WaoRTER, and Lewis Condict, esquires, commissioners, 
&c. 



No. XXI. 

GENTLEIVIEN, 

It is not for the state of New-Jersey to ask and receive benefits 
from the state of New-York — we have not been commissioned for 
any such purpose. 

As the claim of New-Jersey, as stated by us, has unfortunately 
failed to produce in you a disposition to settle a jurisdictional line 
upon principles of mutual concession — which principles, and not 
any conviction of right in New-York, constituted the basis on 
which we made our inquiry in the note of yesterday ; and as you 
will not treat on this basis all other attempts towards accommoda- 
tion are at an end. 

We are at a loss to conjecture where it is you have imbibed an 
idea so wholly unworthy of us, as that we would treat for the con- 
venience of individual citizens at the expense of the just rights of 
tlie state. 

We remain, with due respect, your obedient servants, 

AARON OGDEN, 
ALEXANDER C. M'WHORTER, 
WILLIAM S. PENNING ION, 
JAMES PARKER, 
LEWIS CONDICT. 

To Egbert Benson, Ezra L*Hommedieu, Samuel Jones, and Joseph 
C. Yates, esquires, commissioners, Sa:<, 

OdoUr 7, 1 807. 



APPENDIX. 



By the honorable Philip Carteret, esq., governor of the province t»t 
East New-Jersey, under the right honorable lady Elizabeth Carteret, sol^ 
executrix to the right honorable sir George Carteret, knight and baronet, 
deceased, late lord proprietor of this province, and his council, 

To the honorable the governor or commander in chief of all his royal high- 
ness' territories in America, at New- York, and his council there. 

Whereas I have an order to lay claim to Staten-Island, as properly and 
justly belonging to the lord proprietor, his government and jurisdiction of 
this province, and doth appear by his royal highness' grant, under his 
hand and seal, bearing date the 10th day of September. A. D. 1664. 

Wherefore these are in the lord proprietor's name, and, by virtue of the 
said grant, to demand of you the surrender of the said island unto me, 
with the quiet possession thereof, and that yourselves, or any other per- 
sons by your authority, do forbear the exercising any command, authority, 
or jurisdiction within the said island ; in which 1 do expect your speedv 
answer and compliance. 

Given under my hand and seal, the 522d July, 1681. 

PH. CARTERET. 



The letter to captain Arthur Brackett, deputy governor and commander 
in chief of New-York government, &c. 

Sin, 

According to my orders, I have sent to Mr. La Prarrie and Mr. Bol- 
lin, to demand the surrender of Staten-Island into my pcsssession and go- 
vernment, as of right belonging unto sir Georgf Carteret, lord proprietor 
ot the province, as you may see by the copy of his royal highness' grants 
«ent you by them ; concerning "ivhich pray let me have your speedy reso- 
Jution and'answer. 

Your humble servant, 

PH. CARTERET. 



By the honorable Philip Carteret, esq., governor of the province of East 
New-Jersey, under the right honorable the lady Elizabeth Carteret, 
sole executrix to the right honorablf sir George Carteret, knight and 

' baronet, deceased, late lord proprietor of this province, and his council. 

Whereas Staten-Island doth of right belong to the provincs of East 
New-Jersey, as doth appear by his royal highness the duke of York's deed 
of grant, under his hand and seal, bearing date the 10th September, 1680, 
b.ut hath been detained by several of the governors under his royal high- 



48 

iless, contrary to all law and equity ; and having now a special order froaa 
the lord proprietor to dema»id the same— These are, in his majesty's name, 
to will and require you, the magistrates, officers, and inhabitants of the 
said island, tu torbear yielding any obedience to the government or juris- 
diction of New-York, or to do or act any thing by their authority or com» 
mand ; but that you forthwith yield obedience to the jurisdiction and go- 
vernment of this province, and receive your commissions, orders, and in- 
Blructions from me, your lawful governor, as you will answer the contrary 
ftt your perils. 

Given under my hand and seal, the 22d July, A. D. 1681. 

PH. CARTERET. 

The foregoing are true copies from lib. iii. page 171, in the office of \ 
the proprietors of East New-Jersey, at Perth-Amboy. 

JAMES PARKER, Register. 
September 10, 1807. 



Book A, page £, March 28, 1681. — Directions and instruction to James 
Bollin esq., secretary of our province of East New -Jersey, from lady Eli- 
zabeth Carteret. 

" You are to lay claim to Staten-Island, as belonging to us, according 
to his royal highness' grant; and also the farm at Horsemus, and to take 
it iato possession for my use." 

Book iii. page 22, February 15, I6i58. — Articles by Philip Carteret, to 
John Ogdeii, sen., ar.d others, undertaking a fishing trade; as also the ^ 
taking and preserving of whales, and such like great fish, &c. 

♦' Imprimis — 1 do give and grant unto the aforenamed John Ogden, 
Caleb Canvitley, Jacob Molleins, William Johnson, and JeSry Jones and 
conipany, and to all or any of them, free leave and liberty to take or kill 
any whale or whales, or such like great fish, in any place or places where 
they may be found or taken, whether at sea, or in any creek or cove be- 
tween Barnegat and the easternmost parts of this province, without any 
exceptions of drifts or wrecks. 

<'2d. That the said persons and company shall have free liberty to 
firing on shore, at any convenient place or places within the bounds and i 
limits before mentioned, all such whales or great fish as they shall find, 
till, or take, and to erect huts or cabins on any person's land by the water- 
side, upon occasion, for their better preservation of the said whales or 
great fish, and trying them for the making of oil, or curing of other fisli 
wey shall take ; provided they do not trespass upon corn-fields, nor da- 
mage to the stock or cattle of any such persons upon whose grounds they 
bhal! come. 

"3d. Extends the limits of the charter to three years. 

"4th. That, for the encouragement of the said persons and company 
■in the prosecution of this design, I do promise and grant unto them, in 
case Staten-Island falls within this government, some convenient place 
or tract of land upon the said island, near unto the water-side, tit for the 
settlement of a town, or society, lo consist of twenty-four families ; and 
that they shall have a cortipetent proportion of land ailotted to each family 
or lot, with meadow ground as well as planting land, and free common- 
age upon the island— each family or lot to pay, as a quit- rent, to the iorrfs 
proprietors^ their heirs, or assigns, one biithel of wheat yearly.*' 



49 

Book 3. page 2f, June 21, 1669.— .License from Philip Carteret, go- 
Tenmr, &c., 'o Peter Hetfelsen, ''to be the onl^ and constant ferryman 
between Communepau and the city of New-York, for three years." 

Same book, page 52, January 18, 1671.— License to JobSimerson, fer- 
ryman, between Bergen, Communepau, and New-York, "witU rates and 
Con«litions as was formerly granted to Peter Hetfelsen." 

Same book, page 152, February 14, 1678.— License to Joseph Hunt 
and others to take whales, &c., within the same bounds as above granted 
in pae;e 22. 

Mi.iutes of board of proprietors, A B, page 13.— At a meeting and 
council i)f the proprietors and proxies — to proprietors of the province, 
lOth May, 1685. 

Present the deputy governor, &€.•—" Petition from John Palmer, esq» 
to have a patent for the lands he has had and taken up on Staten- Island, 
upon consideration thereof, and that it may be of no ill consequence, but 
rather of service, in our claim to that island — It is agreed and ordered, 
that the governor and council mav make a patent of tne same to him.'* 

Book A, page 185, May 26, 1684.— -Patent from the proprietors of East 
New Jersey to John Palnier, of Staten-lsland, within the said province, 
esquire, " All that his capital messuage or dwelling house, with the ap- 
purtenances, situate, lying, and being on the north side of Staten-lsland 
aforesaid, within Constable-Hook, near the mill creek, lately erected and 
built by the said John Palmer, and in the possession of the said John or 
his assigns ; and all that other parcel or tract of land," &c. 

This patent is for seven tracts, containing in all 4,500 acres. 

Book C, two commissions, page 1, August 4, 1718. — Charter to the 
city of Peith-Amboy, by governor Richard Hunter, describes the bounds 
as follows: — " Beginning upon the north side of the Raritan river, by the 
upper corner of that called Peter Sonraan's land, and by the lower corner 
of that now in the possession of James Moore, of VVoodbridge ; thence 
extending on a straight line, as said Moore's land goes, to land now pos- 
aessed by John Veal ; thence, continuing along the said Veal's land, to the 
north-east corner thereof; from thence, extending upon a direct line, to 
the Sduth-west corner of David Horriot's land, and so extending along by 
said Herri.>t's to the south-east corner thereof; from thence extenditigon 
a straight line to the south-westerly corner of the land lately in the ten- 
ure and occupation of John Uarhart, formerly one Henry Lessenibtif, and 
so alofig the line thereof, easterly as it goes, to the meadow or marsh on 
the north side of a guily, where water gi'oerally runs; thence extending 
on a direct east line through the marsh and sound to low-water mark, on 
the easteily side thereof; from thence running down %»the sound south- 
erly, as far as the southernmost point of Statm Island ; from thence, on 
a direct line, to where George Willock's plantaiion, called Rudyard's, 
adjoins by a creek to that plantation, of latr belonging to Andrew B(»wne, 
deceased ; thence, extending along the lines ot said Bowne's land, (ex- 
cluding the same) to Matewan creek ; tlence, up the creek to a bridge 
thereon, where the highway from Ambny ferry to Freehold and Middle- 
town crosseth the same ; thence, extending along the partition line be- 
twixt the counties of Middlesex and Monmouth, to Millstone brook; 
thence, down the said brook, to the post road ; thence, along the same, to 
Sf>uth-River, as it goes to Raritan river, and so down Raritan river (in- 
cluding the said river) to high-water mark on the north side thereof, to 
where the limits of the said town ure said to begin." 

Book C. 3. page 224, January 7, 1783.— License from governor Basby 



50 

to Archibald Kennedy, of New-York, to settle a ferry in the county of 

Bergen, in the province of East. New Jersey, to carry passengers froia 
thence to New-York, and fnma New York thither. 

Elisha Parker's warrant for 199 47 100 acres, W 2 16. Archibald 
Kennedy's, 10 9 100 acres, A B 2 for 226—10 9-100 acre in full— -t« 
Archibald Kennedy. — •• These do certify, that Elisha Parker, by me dulj 
deputed and ^worn to the int^'nt herein after mentioned, did survey for 
Archibald Kennedr, esq., a certain island situate in Hudson's river, ia 
the county of B igen, aid eastern division of New Jersey, called and 
known by the name of Bedlow's Island : beginning at a stake standing 
one chain and sixteen links distant upon x south, tliirty-two degrees and 
a half east, course from ^ small ce far tree growing out of the side of the 
bank on the south-easterly side tf the said island, and from the said stake 
running west four chains and five links ; thence north, forty-eight degrees 
and a half vvest, five chains and five links; thence north, twenty-six de- 
grees west, thiee chains and five links s thence north, three degrees and a 
half west, seven chains and three links; thence north, four degrees east, 
one chain and seven links; thence south, eighty two degrees east, sik 
chains and sixty-seven links ; thence, and south, forty seven degrees and 
a half east, four chains and fifty five links; thence south, fifteen dgrees 
and a half east, four chains and five links ; thence south, fourteen degrees 
xvest, six chains and forty links, to the beginning, (at one chain and 'en 
links of the last course the house bore north, seventy degrees west, at one 
chain and one link distant) containing eleven acres and forty -tvvo hun- 
dredths of au acre, strict measure, which, after allowarice, is to remain, 
for ten acres and nine-tenths of an acre, to vvhich Archibald Kennedy is 
entitled by virtue of a deed to hi m from Elisha Parker for the said quan- 
tity often acres and nine tenths of an acre of land unappropriated, dated 
the 18th day of February, 1746-7, and recorded in lib. A. B. 2 fol. 26. to 
grant which the said Elisha had right in part of his warrant from the 
council of proprietors i»f the eastern division of New Jersey aforesaid for 
199 47-100 acres of land, dated the 21st May, 1744, and recorded in Ub. 
W. 2. fol. 16. 

" Witness my hand, this nineteenth day of February, 1746. 

"JAMES ALEXANDER, sen/' 

The foregoing is a true copy from book S. 2. page l69, in the oflice of 
the proprietors of East New Jersey at Perth- Amboy, September 10, 1807. 

Book B. 2. psge 251, Nov. 14. 1719. — Patent from governor Morrife 
to George Wilcocks, to keep a ferry from Amboy to Staten- island. 

Book F. page 742, Sept. 15, 1697.— Patent to George Wilcocks, for 
sundry water lots in Amboy, extending into the Sound to low-water mark. 

Book C. page 70, August 26, 1698.— •Patent to the same, for other wa~ 
ter lots extending to low-water mark in the Sound. 

Book G. page 61, May 1, 1699. — Patent to Thomas Gordon, for two 
lots extending to low-water mark in the Sound. ^ 

BKRGE>f COUNTY, SS. 

Cornelius Van Vorst, of Aharsimus, in the county of Bergeh, being duly 
sworn, deposeth and sailh, that he is now in the seventy nmth yeai of his 
age ; that he was born where he now livcS, and has resided at AharsimuB 
fcver since his birth ; that this deponent has been acquainted with (he shore 
on the west side of the liudeya river, and what ia nov/ called New-York 



bay, ever since he was a boy ; that this deponent has known that the in- 
habitants of the town (if B**rgen have unif'Jimly exerciied the riglr of 
oystering; and fishing in the Hudson river and bay aforesani ever since 
his recollection, and that the said iiihabitints id' Bergen have also ex<'ir- 
cised the right of setting fikes upon the fl;its, and of continuing their ex- 
tension from the shore into the river or ffay from year t(» year, and that 
tliis deponent has also set fike fences, o;J*stered, and fiirtt-d in t!ie >aid 
river and bay and upon the flats; and this deponent further saitli. that 
he never knew any of the people of New York exercise the right of set- 
ting fike fejices upon tiie flats or on the wfst side of the Hudsun's river 
©r bav aforesiiid, within the limits afores^d, excepting one person, aboiit 
two years ago. who this deponent ffnderstodU hiid set a fike fence betweea 
the wo islands, but of this this deponent has no certai . knowledge; and 
this d 'ponenl furtlier saith, that, wiien a boy, he uriderstood frun the ild 
inhabitants of Rergen, (hat it had been the practice at the town meetings 
of the corporation of Bergen they appointed certain officprs-, who f ey 
called water-bailiffs whose parti .ular duty it was to appre?h^nd (*ffetiders 
upon the waters within the said township, which were considered to in- 
clude those from the western shore of Hudsm river and west of the bay 
aforesaid, to the deep waters in said river and bay ; that this deponent 
understood that Jacob Vanhorn and Minard Gartbrarits were two of the 
persons who held the said office of water-bailiSs, and that s;iid bailiffs did 
irequeotly apprehend persons belonging to the city (,f New-Vork oyster- 
ing upon the flats, and bring them before the authority then in Bergen ; 
and this deponent further saith, that he never undei stood that any legal 
measures were taken by the persons from New York thus apprehended 
in defence of the right ; but this disponent was informed, that, after some 
time, a number of the people of New-York came over armed with mus- 
kets, and drove off the said bailiffs; and this deponent further saith, the 
records of the annua! proceedings of the corporation of Bergen, of the year 
of which this deponent now speaks, have been lost or destroyed. 

And this deponent further saiih, that he established the present ferry 
at Jersey, (then Powles-Hook) about forty years ago ; that he built a docfc 
and ferry-stairs, for the accommodation thereof, into Hudson's river, be- 
yond low-water mark, and that no «ibjection was made by the people or 
corporation of New-York for his so doing; that since the first establish- 
ment of the ferry aforesaid he has extended the ferry-stairs and dock still 
further into the Hudson river, and no -ibjection was then made by the 
people or corporation of Ne\\ York for his so doiiig; and this deponent 
saith, that the said ferry has been established ever since the memory of 
this deponent, and that the ferry ai Hoboken has been established nearly 
as long as the ferry at Powles Hook; that the ferry stairs and dock, as 
well at Weekauk as Hoboken, have for many years been extended beyond 
low-water mark in the Hudson river, and that this deponent never heard 
any objection ma<le thereto by the people or corporation of New-York, or 
anv difficulty suggested on account thereof. 

And this deponent further saith, that a few years since, how many this 
deponent cannot now recollect, but since Mr. Vanedyne Elsworth first 
came to live at Powles-Hook. a cer ain W illiam Siow. as this deponent 
understood, came over from New York, by the directions of the corpora- 
tion, and cut the nets ot some of the people of Bergen, and set them, and 
went to fishing himself; that the said VVilliain Slow was prosecuied be- 
fore Daniel Van Hyper, esq., of Bergen, by the person injured, and judg- 
ment obtaiaed for the damages, aad executiQn issued thereoo; and the net 



62 

taken by virtue ♦hereof, and carried into Bergen, where it remained a few 
da^s, f-eii this depditent understood ihe sauJ Siovs came over by oidei of 
the tc.poration, anil pai«t tl)e damages ard tosfs. and t(ck thf net a^av. 
Anr' '^^\i^ depciieiit further saiih, the next seasof after the brtore men- 
tio'ed tiansaction tM>k plare, out; alderuian and two as.-i«tar.t8 of the 
Corfiorati(>n of New-York cam^over tv this der*ine?,t, and asked permis- 
sion to firh for the use of the ^n^s-'""^8e, which this depoiunt permitted 
them to do ; since which this deponent does not recollect Swy interference 
bas been made bj he corp<'ratJun or ptcple if New-Yotk with the rij^ht 
of fisliing of the people of Rerg^n, noi ha^e thev *ince requested jjormis- 
sion to fisli, to this deponent's knowledge, but (lis deporunt%)elie\es that 
the people of New York, as w^II a;< Irom s'ime pa\t8 of Jemc^.have prac- 
tised o^ster'ng upon the flats, and in nudson river and New-York baj.— = 
And further this deponent saith nut. 

CORNELIUS VAN VORSTc 

Sworn B^ftre me, this 2Sth September, 1807. 

(SKAL.) PHILIP WILLIAMS, A^'otary Public, 

And whereof an acknowledgment being requited, I have gianted the 
game under my notarial f^rm and seal, at the town of Jersey, the day an^ 
year above written. 

PHILIP WILLIAMS, Mtary Publkl 



MESSAGE 



OP • 



HIS EXCELLENCY THE GOVERNOR, 



TOGETHER WITH 



THE REPORT 



COMMISSIONERS APPOINTED ON THE PART 



State ot lilc^^3ri*s(jjrs> 



SETTLE THE QUESTION OF TERRITORY AND JURISDICTION 



IN DISPUTE WITH THE 



&c. &c. 



FEBRUARY, 1820. 



TRENTON: 

PRINTED FOR THE STATE BY JOSEPH TUSTirE. 



1828. 



MESSAGE, &c. 



EXECUTIVE DEPARTMENT, Trenton Feb. 4, 1828. 

'Gentlemen of the Legislative Council, 
and of the General Assembly. 

I LAY before you a report and statement of the claims of New- 
Jersey to the Hudson river and Staten Island, by the commis- 
sioners appointed under the authority of this state, to negotiate 
an amicable seldement of the existing differences between the 
states of New-Jersey and New-York, respecting boundary and 
jurisdiction ; from which you will learn, that notwithstanding the 
commissioners on the part of this state, have manifested the 
strongest desire to effect a settlement of these differences, by 
offering to make great sacrifices of the just rights of this state, 
to attain that desirable object, and by insisting on no conditions 
incompatible with either the honour or the interest of that state 
to have conceded to us : yet the negotiation has not had a sat- 
isfactory issue. 

The repeated overtures which have been made on the part of 
New-Jersey, as well as the liberal terms of compromise offered 
by our commissioners, cannot fail to place in a strong light the 
constant and strong disposition on the part of this state, to remove 
every source of irritation and dispute, and to terminate in any 
reasonable and satisfactory mode, the unhappy differences be- 
tween the two states. 

In 1806, her legislature made advances for that purpose, by 
appointing commissioners to meet commissioners, to be appoint- 
ed on the part of New-York, to settle the limits within which 
the respective states should exercise jurisdiction on the waters 
lying between their shores, and to determine the eastern boim- 
dary line of New-Jersey ; when the commissioners appoint.ed 



by the respective states attempted, but without success, to settle 
the question of strict right. 

In 1818, New-Jersey made a new proposition to settle the 
controversy, and offered to appoint commissioners to agree with 
commissioners to be appointed by New-York, to make a state- 
ment of facts, relative to the controversy, to be submitted to the 
decision of the Supreme Court of the Unhed States, which,* by 
the federal constitution, has original jurisdiction of all controver- 
sies between two or more states ; and where the questions of 
boundary and jurisdiction, might have been temperately discuss- 
ed, and fairly and justly decided j but which overture remains 
to this day unanswered. 

As the legislature of New-York, by their silence, declined a 
judicial decision of the matters in controversy in, 1824 the 
legislature of this state, in the hope that an amicable adjustment 
of the differences might be made to the advantage of both states, 
upon the principles of compromise and mutual concessions; and 
without agitating the question of right, about which the former 
commissioners had disagreed, passed an act for that purpose, au- 
thorizing the appointment of commissioners by the executive 
of this state, to meet commissioners to be appointed on the part 
of New-York; but the time limited in our act was suffered to 
expire without the legislature of New-York passing a corres- 
ponding law on their part. 

In the year 182G, the deputy sheriff of Richmond county 
was arrested and indicted in this state, for serving process 
within the jurisdiction of New-Jersey, under the authority of 
the laws of New- York; when upon an application from the go- 
vernor of New- York, the executive of this state directed all 
further proceedings against that officer to be suspended, until af- 
ter the meeting of the legislatures of the two states, in hopes that 
the New-lork legislature might be induced by the perilous situ- 
lion in which one of her officers was placed, in consequence of 
the conflicting claims between the two states, to agree to some 
fair mode of settling the controversy ; and thereby render unne- 
cessary the further prosecution of that officer, for the purpose 
of maintaining our jurisdiction. 



And in the sannc year, upon an informal intimation of the go- 
vernor of New-York, to the executive of this state, that if the 
time was enlarged by our legislature for the appointment oi 
commissioners by the respective states, commissioners would 
probably be appointed on the part of New- York, our legislature 
passed an act for 'hat purpose, which was duly communicated to 
the governor of New-York ; but which was tardily met by the 
legislature of that state, and under circumstances \vl:ich gave 
but little promise of a favourable issue. And it is worthy of re- 
mark, that pending the negotiation, and whilst our commission- 
ers were actusilly attending at Albany to meet the commissioners 
of New- York, a bill passed one branch of her legislature, and 
which subsequently became a law, asserting and declaring the 
boundary line of that state to extend " along the west shore a' 
lov water mark of Hudson river, of the Kill Van Kull of the 
sound between Staten Island and New-Jersey, and of Raritar. 
Bay to Sandy Hook"; thereby extending their claim of territo- 
ry much farther than had ever before been done by any legisla^ 
live exactment. 

This government certainly had a right to expect, that pending 
the negotiation for an amicable settlement of the difTerences, on 
conditions honourable and satisfactory to both parties, all thing? 
would have been permitted to remain as they were, and that 
their legislature would have forborne to make a new assertion of 
their claims, and especially one which they could not seriously 
suppose that New-Jersey would ever acquiesce in, as the basis 
of an amicable settlement. 

Under such circumstances, it is not a matter of much surprise, 
tliat the New-York commissioners should reject all terms of 
compromise which implied an acknowledgment by them, of 
the right of this state to any part of the waters of the Hudson ri- 
ver, and should ofFer to us as matters of favour and gratuity, 
rights and privileges upon our own wharves, and along our own 
shores, with some other trifling privileges of little or no value ; 
terms of settlement which were promptly and justly rejected by 
our commissioners. 

This conduct, f50 different from that sense of justice, magna- 



nimity, and amity, that ought to exist between *' independeni 
communities," renders all further attempts on the part of this 
state at compromise and settlement, entirely hopeless, and 
leaves us no alternative, but by enforcing the laws of the state, to 
support its jurisdiction, and which have heretofore been suc- 
cessful in resisting all open attempts to encroach upon our rights 
or territory. 

The as:«srlion, which has been repeatedly made, "that New- 
York is in the exclusive possession of the disputed waters, and 
in the actual and constant exercise of exclusive jurisdiction over 
them," is totally unfounded, and is most fully disproved by the 
constant exercise of jurisdiction, by this state, over those waters, 
and the actual use of them by our citizens, for all useful and 
necessary purposes j and by the wharves and piers which have 
been, and are constantly erecting, under the laws of this stale, 
along our shores, and extending beyond low water mark; and 
which encroachments upon their claims of jurisdiction, have, for 
many years past, afforded to that state fair opportunities to bring 
the question of boundary between the two states, to a legal de- 
cision : but it appears that the state of New-York chooses rather 
to submit to all those encroachments upon the territorial limits 
claimed by her, than to try the question of title between the two 
states. And, as a further proof of the unwillingness, on the part 
of that state, to bring their claims to a judicial decision, I refer 
to the fact, that, upwards of twenty years ago, the corporation 
of the city of New-York commenced an action at law against 
certain individuals for a trespass, or usurpation upon their rights, 
building the first piers at Jersey City, which are extended into 
the Hudson river, far beyond low water mark; but which action, 
since the service of the process, has not been further prosecuted, 
no doubt from a consciousness of the weakness of their title, and 
a reluctance to bring it to the test of a judicial investigation. And 
since that time, other piers have been erected at that city, ex- 
tending into the Hudson river, for which no action whatever has 
been brought; whereas no trespass upon our territory, or viola- 
lion of ourriglus, has occurred, or is likely to occur, to afford to 
this state an opportunity of bringing to a legal decision, by the 



ordinary process of law, any question between the two states, as 
to boundary or jurisdiction. And, by a report made in the senate 
of New-York, on the 12th of February, 1827, by a committee 
on the judiciary, relative to the New-Jersey boundary, it is made 
a question, whether " the article of the constitution of the Unit- 
ed States, which extends the federal power to controversies be- 
tween two or more states, gives the Su[)reme Court of the Unit- 
ed States cognizance of questions which may arise between mem- 
bers of the confederacy, as to their sovereignty and jurisdiction;^^ 
and if that court does not possess jurisdiction to settle and deter- 
mine ail such questions, then New-Jersey has no means within 
her own power to bring the controversy to a final decision, and 
must, from necessity, rely upon her laws, and the vigilance of 
her citizens, for the support and maintenance of her just rights, 
until a returning sense of justice and amity shall induce that state 
to submit her claims to some peaceable mode of decision. 

Since the failure of the negotiation, I have given notice to the 
prosecuting attorney, that the reasons which induced me to di- 
rect a suspension of the proceedings against the deputy sheriff 
of Richmond county, no longer exist; and that he is at liberty 
to proceed with the prosecution against him. 

I recommend to your consideration, whether any further legis- 
lative provision is necessary to secure our citizens in the peace- 
able possession of their rights, and to prevent any further usur- 
pation of authority within the eastern boundary of this state; 
and whether any process of law can be resorted to, to bring the 
controversy between the states of New-Jersey and New-York 
to a legal decision within a reasonable time. 

It will also be necessary for the legislature to make provision 
for compensating the commissioners on the part of this state for 
their services, and the very satisfactory manner in which they 
have discharged the duty required of them. 

ISAAC H. WILLIAMSON, 



REPORT 



COMMISSIONERS, &c. 



To the Honourable the Legislative Council 

and General Assembly of the State of JYew- Jersey. 

The undersigned commissioners, appointed on the part of the 
state of New-Jersey, to settle the questions of territory and ju- 
risdiction in dispute with the state of New- York, 

Respectfully Report : 

That soon after they received their appointment and com- 
mission from his excellency the governor of this state, tliey met 
at Trenton, duly organized themselves into a board, for the reg- 
ular prosecution of the duties of their commission, and notified 
the commissioners on the part of the state of New-York, of 
their readiness to proceed with the negotiation. A meeting of the 
two boards was arranged to take place at Newark, on the 
first day of August last, and was accordingly held. 

Your commissioners, after full deliberation, concluded that it 
would be proper in the first instance, to waive the formal inves- 
tigation of the claims of New-Jersey over the waters lying be- 
tween the two states ; and to endeavour, in the spirit of the act 
which created their powers, and by an amicable negotiation, 
conducted upon principles of mutual concession, to settle the 
controversy upon terms equitable and just. 

They were the more disposed to this course, when it was 
considered that the question of title had been long before the 
public, and had received an able discussion at a meeting of com- 
missioners, heretofore appointed by the two states for the same 
objects. 

And moreover, your commissioners at their first meeting wiih 
the commissioners of New-York in August last, perceived no 
disposition on their part, to engage in a formal investigation of 



y 

the title ; and it was suggested, that propositions in writing, of 
an adjustment of the existing difficulties on the waters of the 
Hudson river and the sound, should be made and interchanged 
by the respective boards. 

This was accordingly done, in the hope of thereby arriving at 
some basis of settlement, where the two states might meet in 
harmony, and thus terminate a nrotracted and unhappy contro- 
versy, ^y 

The proposition No!!3^submitted by your commissioners, 
in substance embraced the principles of the agreement hereto- 
fore made between the states of New-Jersey and Pennsylvania, 
with respect to the river Delaware ; and under which conven- 
tion, they have experienced no inconvenience, but great bene- 
fit, in the common use of those waters. 

On receiving the proposition of the commissioners of New- 
York, marked No. 2, in exchange for their first proposition, 
your commissioners were surprised to perceive, that the com- 
missioners of New- York did not propose to negotiate on the 
principles of equality of right; but therein considered them- 
selves in the exclusive and decided possession of the whole wa- 
ters of the Hudson river, and were only willing to concede to 
New-Jersey, and that with a sparing hand, certain specified pri- 
vileges. 

The undersigned promptly apprised them, that they could not 
negotiate upon such a basis, and that any convention made up- 
on such terms would not only be repugnant to our own convic- 
tions of the rights of New-Jersey, but would never receive the 
sanction of our legislature. 

The commissioners on the part of New-York, professing a 
desire to settle the controversy, proposed that further efforts 
should be made by the modifications of their respective propo- 
sitions; and accordingly, at a subsequent meeting at Newark and 
at several succeeding meetings at Albany, the subjoined propo- 
sitions, marked No. 1, 2, 3, 4, 5, C, 7, and 8. were inter- 
changed. 

In all of which, on the part of New-York, the undersigned 

B 



10 

regret to state, as your honourable bodies will perceive, the ex- 
clusive right and jurisdiction of the state of New-York over the 
Hudson, is considered as unquestionable and conclusive, and in 
the powers conceded to the state of New-Jersey, we could not 
fail to be struck with the guarded restrictions, that by necessary 
construction, effectually excluded her from even a concurrent ju- 
risdiction over any portion of these common waters. 

In the terms of settlement submitted by your commissioners, 
they endeavoured to remove any ji3^ground of exception, by 
yielding to New-York exclusive jurisdiction over the adjoining 
waters in several important matters, which the health and com- 
mercial welfare of the city of New-York seemed to require. 
As that great and rapidly increasing emporium of commerce, is 
identified with our national prosperity, and maintains very ulti- 
mate and constant relations in business, with the state of New- 
Jersey, we deemed these concessions to be justified, as well by 
sound public policy, as by the spirit of accommodation, with 
which we approached the duty assigned to us. 

Influenced by a desire to promote those friendly feelings, so 
essential to the well being of sister states, we further proposed to 
relinquish the claims of New-Jersey to Staten Island and the 
adjacent small islands in the intermediate waters. 

After several conferences with the commissioners of New- 
York at Albany, that only furnished additional proof of their de- 
termination to adhere to the principles of their first proposition, 
the undersigned became convinced, that further negotiation 
would be fruitless, and therefore concluded it, by addressing to 
ihem the note marked A, the answer to which ' marked B, 
and the further correspondence, marked C, and D, are hereto 
subjoined. 

Believing, as we firmly did, that New-Jersey possessed at 
least, equal and concurrent rights over the Hudson, and the oth- 
er dividing waters, and that her property rightfully extended to 
the middle of that river, we could not consistently extend the 
concessions of New-Jersey beyond the terms of our proposi- 
tion?. 



II 

We have deemed it proper to submit with our report, a state- 
ment of ihe claims of New-Jersey, to tlie Hudson river and 
Staten Island, and the reasons in law, on which those claims are 
founded. 

RICHARD STOCKTON, 
JOHN RUTHERFURD, 
THEODORE FRELINGHUYSEN, 
LUCIJJ§ Q,. C. ELMER, 
JAMfiS PARKER. 



FIRST PROPOSITION ON THE PART OF NEW-JERSEY. 

The commissioners of New-Jersey, by way of friendly com- 
promise and settlement of their territorial and jurisdictional dis- 
putes with the state of New York, and without discussing or by 
this proposal, affecting the question of right on the part of either 
state, proposed to the commissioners of New-York the follow- 
ing terms : 

1. That the waters of the Hudson river, south of the forty- 
first degree of north latitude and north-west of a line drawn 
from the south-west point of the Battery, in the city of New- 
York, to Staten Island, and the waters between Staten Island and 
the main land, excluding Newark hay, be the boundary betueen 
the two states, and a common highway, equally free and open 
for the use, benefit, and advantage of both parties; the rights of 
fishing, docking, wharfing, and improving upon, and adjacent to 
the shores of each state, respectively, to be full, free, and exclu- 
sive, so that nothing shall be done that will teud to obstruct or 
impair the navigation. 

2. That each state enjoy and exercise a concurrent jurisdic- 
tion within and upon the aforesaid waters, but so that every 
ship or other vessel being in the s lid waters, and bona fide, de- 
parting from, bound to, or riding at anchor before any city or 
town in either state, where she hath last laden, unladen, or 
departed, or where it is intended she shall first thereafter 
lade, unlade, or enter, be considered exclusively within the ju- 



12 

risdiclion of such state ; an(^ every vessel fastened to, or aground 
on the shore of either state, shall in like manner be considered 
exclusively within the jurisdiction of such state. 

3. That the islands called Bedlovv's Island, Ellis' Island, Oys- 
ter Island, and Robins' Reef, to low water mark of the same, be 
held to be and remain within the exclusive jurisdiction of the 
slate of New- York. 



FIRST PROPOSITION ON THE PART OF NEW-YORK. 

The state of New-Jersey shall enjoy and exercise exclusive 
jurisdiction on ail the wharves and land now made, or which 
may hereafter be made on the west shore of the Hudson ri- 
ver, from the northern boundary of the state of New-Jersey a- 
long the said shore, as well as natural alluvion, to the actual line 
of low water, provided such wharves and piers do not impede 
or obstruct the navigation of said river ; and process issuing out 
of any of the courts of said state, or from any magistrate there- 
of duly authorized, may be served upon any person indebted 
within the said state, on contracts arising therein, or charged 
with having committed any offence within said state, and who 
may be on board of any vessel fastened to, or alongside of such 
wharves, or aground on said shore, or who may have commit- 
ted any trespass or offence on board of any vessel so situated. 



SECOND PROPOSITION ON THE PART OF NEW-JERSEY. 

1. The waters of the Hudson and between Staten Island and 
the main land, to be the boundary between the two states, and 
a common highway for both parties, and New-Jersey to relin- 
quish all claim to Staten Island and the islands in the above wa- 
ters now claimed and possessed by New-York. 

2. The state of New- York to have the exclusive jurisdiction 
in and over the waters of the Hudson, with the following excep- 
tions, viz. New-Jersey to have the exclusive right to regulate 



and exercise jurisdiction over wharves, docks, and other im- | 
provemeiits made or to be made on the New- Jersey shore 
and the fislieries on the west side of tlie channel, so that the na- [ 
vigation be not obstructed or injured; and New-Jersey to have | 
also exclusive jurisdiction over vessels bound to, or departing 
from any place in New-Jersey, or riding at anchor before any- 
place in New-Jersey where she hath last laden or unladen, or 
where it is intended she shall first thereafter eitiier lade or un- 
lade, so that the said vessels shall be considered as subject to 
such general quarantine laws of the state of New-York as the 
vessels of their own state are or may be subject to, provided that 
such vessels may be permitted to discharge their cargoes, sub- 
ject to such quarantine regulations at any port in the stale ot 
New-Jersey, insiead of Brooklyn or any other port in the state 
of New-York: and jurisdiction over property taken out of New- 
Jersey, to evade due process of law, and over persons for acts 
committed, or debts contracted in New-Jersey, and also con- 
current jurisdiction as to offences committed, or trespasses done 
by citizens of New-Jersey on the west side of the main channel 

3. The state of New-Jersey to have the exclusive jurisdiction/ 
over the waters between Staten Island and the main land, with ' 
the same exceptions in favour of New-York as are contained in 
the above article in favour of New-Jersey. 



SECOND PROrOSITION ON THE PART OF THE STATE OF NEW 

YORK. 

The commissioners of the state of New- York, by way of mak 
ing a friendly compact between the states of New- York and 
New-Jersey, that delinquents and offenders in and against the 
state of New-Jersey, may be brought to justice, and the dis- 
pute between the two states as to jurisdiction and limits, may 
be amicably adjusted, make the following propositions to the 
commissioners of New-Jersey, the making of such propositions 
not to affect any question of right between the two states. 

1. The inhabitants of New- Jersey, in comraon with the in- 



14 

habitants of the slate of New-York, shall enjoy the fisheries on 
the west side of the Hudson river, from the northern boundary 
of the state of New-Jersey, southwardly along said state, and 
in the waters between Staten Island and New-Jersey, to be so 
used however as not to injure the channels or impede or ob- 
struct the free and safe navigation of the said river. 

2. The state of New-Jersey shall enjoy and exercise exclu- 
sive jurisdiction on all the wharves and land now made, or 
which may hereafter be made on the shore of the state of New- 
Jersey, opposite to the state of New-lork, and also to low wa- 
ter along the whole of said shore, and that civil process issuing 
out of any of the courts of said state, or from any magistrate 
thereof duly authorized, may be served upon any person or 
persons indebted, or liable upon any contract made within the 
said state, or who may have committed any wrong therein, and 
which person or persons may be on board of any vessel fasten- 
ed to or by the side of such wharves, or aground on such 
shore, provided that such person or persons shall not then be 
under arrest by virtue of any process or authority of the state 
of New-York. 

3. The state of New-Jersey shall also have the right of serv- 
ing criminal process upon all the waters of the Hudson river, ly- 
ing between the states of New-York and New-Jersey, and up- 
on all the waters between the shores of Staten Island and New- 
Jersey, for crimes and offences committed upon the land above 
low water, and within the said state of New-Jersey ; such pro- 
cess not to be served upon any person or persons, on board of 
any vessel attached to, lying at, lading or unlading at, or by any 
wharf, pier or shore, in the slate of New-York, or anchored in 
any of said waters for the purpose of lading, or unlading as a- 
foresaid, or who may then be under arrest by virtue of any 
process, or authority of the state of New-York. 

4. The state of New-York shall have the right to exercise all 
jurisdiction, power and authority, over the said waters, other 
than such as herein secured to the state of New-Jersey. 



15 



THIRD PROPOSITION ON THE PART OF NEW-JERSEY. 

1. The waters of the Hudson river, and ihe other waters be- 
tween the two states, to be the boundary and a common high- 
way for both parties. 

2. Each state shall have the exclusive jurisdiction and regu-\ 
lation of wharves, docks, and other improvements, made or to 
be made on its own shores, and of the fisheries adjacent to its 
shores, provided that the navigation be not obstructed or in- 
jured. All vessels fastened to or aground on the shore of either 
state, shall be considered as exclusively within the jurisdiction 
of such state, as shall also, all vessels bona fide, bound to, or 
from such state. 

3. Each state shall have concurrent jurisdiction in the service 
of civil process, issued for the enforcement of any contract 
made, or wrong done or committed within such state ; and also 
for the service of criminal process for offences committed 
against such state. 

4. The state of New- York shall exercise exclusive jurisdic- 
tion over the waters of the Hudson river and bay of New- York, 
in the enforcement and execution of her health laws, and all oth- 
er jurisdiction, power, and authority over the said waters, in eve- 
ry case not herein before stipulated; and the state of New- 
Jersey shall exercise exclusive jurisdiction over all the other wa- 
ters between the two states, in the enforcing and execution of 
her health laws, and all other jurisdiction, power, and authority, 
in every case not herein before stipulated. 

5. The state of New-Jersey to relinquish all claims to Staten 
Island and the other islands in the waters between the two | 
stales now claimed and possessed by New-York. 



THIRD PROPOSITION ON THE PART OF NEW-YORK. 

]. The inhabitants of New-Jersey, in common with the in- 
habitants of the state of New- York, shall enjoy the fisheries in 
that part of the Hudson river, which is east of the shore of New- 



16 

Jersey, and also in the waters between Staten Island and the 
New-Jersey shore ; but the state of New-Jersey shall have the 
right of regulating the fisheries on the west side of the said wa- 
ters, between Staten Island and New-Jersey, to be so regulated, 
however, as not to injpede or obstruct the free and safe naviga- 
tion of the said waters. 

2. The state of New-Jersey shall enjoy and exercise exclu- 
sive jurisdiction on all the wharves and land, now made, or 
which may hereafter be made, on or adjoining the shore of New- 
Jersey, opposite the state of New-York, and also to low water 
mark along the whole of the said shore ; and civil process issu- 
ing out of any of the courts of said state, or from any magis- 
trate thereof duly authorized, may be served upon any person 
or persons indebted, or liable on any contracts made within the 
said state, or who may have committed any wrong therein, and 
which person or persons may be on board of any vessel fasten- 
ed to, or by the side of such wharves, or aground on said shore, 
provided that such person or persons, shall not then be under 
arrest, by virtue of any process or authority of the state of New- 
1 orK. 

3. The state of New-Jersey shall also have the right of serv- 
ing criminal process upon all the waters of the Hudson river, 
lying between the shores of New- York and New-Jersey, and 
upon the waters between the shores of Staten Island and New- 
Jersey, for crimes and offences committed upon the land, above 
the natural low water, on the shore of New-Jersey, or upon any 
wharf or land now made, or which may hereafter be made, on 
or adjoining the said shore ; such process not to be served upon 
any person or persons, on board of any vessel attached to, lying 
at, lading or unlading at or by any wharf, pier, or shore, in the 
stale of New-York, or anchored in any of said waters, for the 
purpose of lading or unlading as aforesaid, or who may then be 
under arrest, by virtue of process or authority of the stale of 
New-York. 

4. The state of New-Jersey shall also have the right of serv'- 
ing process, issued in pursuance of the laws of that slate, upon 
all properly taken out of New-Jersey to evade due process of 



17 

law, in all places where tlie right to serve criminal process, issu- 
ed under the authority of the state of New-Jersey, is provided 
for by the foregoing article : provided that such property shall 
not have been seized or levied upon, under or by virtue of pro- 
cess, issued under the authority of the state of New- York, so 
as to render it subject to the exigency of such process, by vir- 
tue of such seizure, according to the laws of the state of New- 
York. 

5. The state of New-York shall have the right to exercise all 
jurisdiction, power and authority, over the said waters, other 
than such as are herein secured to the state of New-Jersey. 



FOURTH PROPOSITION ON THE PART OF NEW-JERSEY. 

1. The waters of the Hudson river and the other waters be- 
tween the two states, to be the boundary, and a common high- 
way for both parties. 

2. Each state shall have the exclusive jurisdiction and regula- 
tion of wharves, docks and other improvements, made or to be 
made on its own shores, and of the fisheries adjacent to its shores : 
provided that the navigation be not obstructed or injured. All 
vessels fastened to, or aground on the shore of either state, shall 
be considered exclusively within the jurisdiction of such stale. 

3. Each state shall have concurrent jurisdiction over the said 
waters, in the service of process issued for the enfo^ceju^^nt of 
any contract made, or wrong done or committed s^^^/ma/^ such 
state ; and also for the service of criminal process, for offences 
committed against such state above low water mark : provi- 
ded, that as to civil process for the enforcement of any such con- 
tract, the citizens of the said states of New- York and New- 
Jersey shall not be subject to arrest on the said waters, by pro- 
cess issuing from the courts of either state against the citizens 
of the other. 

4. The state of New-Jersey shall have concurrent jurisdic- 
tion for all offences committed by her citizens on the waters of 
the Hudson adjacent lo New-Jersey ; and the state of New- York 

c 



18 

shall have concurrent jurisdiction for all offences committed by 
her citizens on the other waters between the two states, adjacent 
to the state of New-York. 

5. The state of New-York shall exercise exclusive jurisdic- 
tion over the waters of the Hudson river and bay of New- York, 
in the enforcing and execution of her health laws, and all other 
jurisdiction, power and authority over the said waters, io every 
case not herein before stipulated : provided that the same shal' 
be in every respect, equal and reciprocal as to the two state? 
And the state of New-Jersey shall exercise exclusive jurisdic 
tion over all the other waters between the two states, in the en 
forcing and execution of her health lav\'s, and all other jurisdic- 
tion, power and authority over the said waters, in every case not 
herein before stipulated: provided that the said exclusive juris- 
diction, shall be in its exercise, in every respect equal and reci- 
procal as to the two stales. 

6. The state of New-Jersey to relinquish all claims to Staten 
Island and the other islands in the waters between the two states, 
now claimed and possessed by New- York. 



FOURTH PROPOSITION ON THE PART OF NEW-YORK. 

1. The state of New-Jersey shall have exclusive jurisdiction 
over all the waters on the west side of the channel between Sta- 
ten Island and New-Jersey, and on all the wharves, piers and 
land now made or to be made on or adjoining the shore of New- 
Jersey, opposite the state of New-York, and also to low water 
mark along the whole of said shore, and also on all vessels fas- 
tened to or by the side of any such wharf or pier, or aground on 
said shore : provided however, that the said vessels and their of- 
ficers, crews and passengers, and also the waters above men- 
tioned, and all vessels therein, with their officers, crews and pas- 
sengers, shrill be subject to the jurisdiction of New-York for the 
enforcing of such quarantine and health laws, and such laws re- 
lating to passengers as now exist, or may hereafter be passed 
under the authority of that state. 



19 

2. The state of New-Jersey shall have the right to serve ali 
civil process over all the waters between the shores of the two 
states, upon any person or persons domiciled in the said state of 
New-Jersey : provided such person or persons shall not then be 
on board of any vessel attached to, lying at, lading or unlading 
at or by any shore in the state of New-York, or any wharf or 
pier adjacent to such shore, or anchored in any of the said wa- 
ters, for the purpose of lading or unlading as aforesaid: and pro- 
vided alsp, that such person or persons shall not then be under 
arre3^l^5^i§%l/VB^HrV^ss or authority of the state of New-York. 

3. The statV SflTew-Jersey shall also have the right of serv- 
ing criminal process wherever the right of serving civil process is 
provided for by the foregoing article, for all crimes and offences 
against the laws of said state, committed upon the land above the 
natural low water mark on the shore of said state, or in any place 
where the jurisdiction of said state is provided for in the first ar- 
ticle: provided the person or persons against whom such process 
shall have been issued, shall not be at the time of its service, un- 
der arrest by virtue of any process or authority of the state of 
New- York. 

4. The state of New-Jersey shall also have the right of serv- 
ing process issued in pursuance of the laws of that state, upon all 
properly taken out of that state to evade due process of law, in 
all places where the right to serve civil process upon persons 
domiciled in said state is provided for in the said article: pro- 
vided that such property shall not have been seized or levied 
upon under or by virtue of process issued under the authority 
of the state of New-York, so as to render it subject to the ex- 
igency of such process, by virtue of such seizure, according to 
the laws of that state. 

5. The state of New- York shall have the right to exercise all 
jurisdiction, power and authority over all the said waters other 
than such as are herein secured to the state of New-Jersey. 



20 



A. 

Letter from the New- Jersey^ to the JVeiv-York Commissioners. 

The undersigned, commissioners of the state of New-Jersey, 
in the present stage of the negotiation, beg leave expHcilly to 
state to the commissioners of the state of NeW-York, that the 
claims of New-Jersey, in the matters of limits and boundary, in 
difference with New-York, are as follows : 

1. A i:ight of territory and jurisdiction to the middle of the 
river Hudson, and the narrows, agreeably to the true con54ruc- 
tion of the original grants, and the rigIus'"iti(yiii»Bw py the war 
of the revolution, and the treaty of peace, recognizing the in- 
dependence of the United Slates. 

2. Staten Island, and the three Oyster Islands, expressly in- 
cluded within the territory of New-Jersey, as set forth in the 
aforesaid grants. 

3. The waters between Staten Island and the main land, the 
same being altogether within the limits of New-Jersey. 

With the hope that some satisfactory arrangement might be 
made upon the basis of mutual accomraodation, the undersign- 
ed have not only refrained from exhibiting their claims, founded 
as they believe upon the most approved principles of law, but 
have explicitly offered to relinquish their right to Staten Island 
and the Oyster Islands, and also important rights in the waters 
of the Hudson, so as to ensure to the city of New-York the 
more effectual protection of her health and commerce. They 
indulged the expectation that the commissioners of New- York 
would propose some arrangement which would not be founded 
on principles inconsistent with any just title in New-Jersey, in 
the matters in controversy. They however, deeply regret, that 
all the propositions offered by the commissioners of New-York 
assume as a basis, the ownership of New-York to the waters 
between the states, and merely accord to New-Jersey, as favours, 
certain privileges which she now fully, and of right enjoys. Un- 
der these circumstances, the undersigned feel themselves com- 
pelled to state more formally, and in writing, that they cannot 
negotiate upon such a basis, nor can they advance farther upon 



2i 

the principles of mutual concession and friendly adjustment. 
They therefore submit to the commissioners of New- York, the 
expediency of referring the decision of the controversy to some 
indifferent and impartial tribunal. 

And haveahe honour to be, with great respect, he. 

• RICHARD STOCKTON, 
JOHN RUTHERFURD, 
THEODORE FRELINGHUYSEN, 
JAMES PARKER, 
LUCIUS q C. ELMER. 

To John T. Irving, JVaihaniel Pitcher, Samuel A. Talcoit, 
Hermanus Bleecker, and Herman J. Red field, esquires- 



B. 

Letter from the New-York, to the JVeio-Jersey Commissioners. 

Dated 17th September, 1827. 
Gentlemen, 

The commissioners of New- York have the honour to acknow- 
ledge the receipt of a note from the commissioners of New-Jer- 
sey, of the 15th instant, in which the claims of the latter state 
are set forth as comprising a right of territory and jurisdiction 
to the middle of the river Hudson, and the narrows; a right of 
territory and jurisdiction over Staten Island and the three Oys- 
ter Islands, and also over all the waters between Staten Island 
and the main land. The commissioners on the part of the slate 
of New-York, from a knowledge of the claims which have been 
heretofore setup on the part of New-Jersey, have from the be- 
ginning of this negotiation, acted under a belief that the only 
mode of coming to an amicable arrangement of the matter iu 
controversy between the two states, was to proceed upon what 
was well expressed in your note, " the principles of mutual con- 
cession, and friendly adjustment," and that the views entertained 
by ourselves, and those which we suppose to be entertained by 
the commissioners of New-Jersey upon the strict legal question 
of right between the two governments were so totally at variance, 



22 

ibat no arrangement could be made upon such a basis. We have 
therefore in all the propositions submitted to the commissioners 
of New-Jersey, endeavoured to avoid any assertion of right on 
the part of New York, and to place the v?hole matter upon the 
footing of an amicable adjustment of the differences between 
the two states, which have heretofore produced inconveniences 
to both. And in those propositions it was certainly the intention 
of the commissioners on the part of this stale, to stipulate for 
the enjoyment by (he stale of New-Jersey, of rights within the 
territory of New-York, the granting of which should not be 
" founded upon principles inconsistent with any just title in New- 
Jersey." But it is true that we have ever had a regard to what 
we consider the territory and jurisdiction of our state, although 
we have sedulously endeavoured to avoid embarrassing the ne- 
gotiations between us, by any assertion of right incompatible 
with the claims of New-Jersey. If we have failed in those en- 
deavours, we are willing that the commissioners of New-Jersey 
shall so correct and modify the phraseology of our propositions 
as (o render them in this respect acceptable. 

At the same time however, we must take the liberty of say- 
ing that we did suppose ihat those propositions contained grants 
of privileges to New-Jersey, which she had never enjoyed, and 
could only have the right of enjoying by virtue of concessions 
from this state. A particular discussion of those privileges in 
the present stale of our negotiation, we do not think necessary 
or useful. But without going into an examination of the claims 
of New-Jersey to " territory and jurisdiction to the middle of 
the waters of tbe Hudson and the Narrows," the commissioners 
of New-York feel bound to say that they did seriously believe 
that the commissioners of New-Jersey would upon their own 
principles, consider the proposed stipulations allowing that state 
to serve criminal and civil process upon the waters east of what 
New-Jersey claims as their boundary line, as grants of new 
rights from the state of New-York. And as they had not under- 
stood that New-Jersey enjoyed or claimed such rights, they were 
not a little surprised to find that propositions granting those rights 
were considered by the commissioners on the part of that state, 



, 23 

as merely according to New-Jersey as favours, certain privileges 
which she now fully and of right enjoys. 

The commissioners of New- York regret that the commission- 
ers of New-Jersey cannot " advance farther upon the principles 
of mutual concession and friendly adjustment," for it will be im- 
possible for us to negotiate upon a recognition of the rights of 
New-Jersey, as asserted by the commissioners in their note of 
Saturday. 

We think therefore that nothing now remains to be consider- 
ed, but the pi'oposition with which that note closes, submitting 
to us " the expediency of referring the decision of the contro- 
versy to some indifferent and impartial tribunal." Upon this sug- 
gestion we have again perused the act of our state constituting 
the board of commissioners; and although we find power to 
make an agreement with the commissioners of New-Jersey up- 
on the points in controversy, we do not see any authority to sub- 
mit the decision of such controversy to any other tribunal. 

There is however a general clause investing us with all pow- 
ers which had been given by New-Jersey to the commissioners 
on her part, and it becomes necessary therefore before discuss- 
ing this proposition, and in order to ascertain our own powers 
in relation to it, that we should inquire whether the commission- 
ers of New-Jersey are authorized by the laws of that state to 
submit the question between the two states to any other, and if 
so, to what other tribunal. 

We are gentlemen with respectful consideration, 
your obedient servants, 

JOHN T. IRVING, 
NATHANIEL PITCHER, 
SAMUEL A. TALCOTT, 
H. BLEECKER, 
HERMAN J. REDFIELD, 

To Richard Stockton, John Rutherfurd, Theodore Frdiiig- 
huysen, James Parker, L. Q. C. Elmer, esquires, Com- 
missioners. 



24 

C. 

Letter from the New- Jersey^ to the New-York Commissioners. 

Albany, September 17ih, 1827. 
Gentlemen, 

The commissioners of the state of New-Jersey have the ho- 
nour to acknowledge the receipt of a note from the commission- 
ers of New-York of this day, and beg leave in reply, to renew 
the expression of their regret that no amicable adjustment of the 
territorial disputes between the two states appears at present to 
be practicable. 

In explanation of the views we expressed of the propositions 
made by the commissioners of New-York, as to the extent of the 
privileges they accorded to New-Jersey, we would remark that 
those views resulted from a consideration of the privileges in 
their connexion. The proposed benefit of executing civil and 
criminal process on the Hudson, was extended to both sides of 
the river, impairing our right to serve process on our own wa- 
ters, and against our own citizens, and was so restricted in its 
terms, and so qualified in ils general operation on the east side of 
the Hudson, that we could not regard it as a distinct and valua- 
ble privilege. 

The suggestion as to the "expediency of referring the deci- 
sion of the controversy to some indiflerent and impartial tribu- 
naV' was not made by us, under the impression that the two 
boards could officially make it the subject of express convention 
and agreement. For the act authorizing the commission on the 
part of New-Jersey, confines our functions to the settlement of 
the line. But as an intimation of such a course was given by the 
New-York board at an early stage of our negotiation, and as 
New-Jersey has always been willing to submit her rights in ques- 
lion to such a tribunal, we presumed that as a measure of expe- 
diency, it might very properly by joint advisement, and the con- 
currence of the two boards, be made a fair matter of recom- 
mendation to their respective legislatures. We alluded particular- 
ly to the Supreme Court of the United States, as the tribunal to 



25 

whose consideration and judgment, wc confidently believe the 
slate of New-Jersey would submit the controversy. 

RICHyVRD STOCKTON, 
JOHN RUTHERFORD, 
THEODORE FRELINGHUYSEN, 
JAMES PARKER, 
LUCIUS q, C. ELMER. 

To John T. Irving, Kathaniel Pitcher, Samuel ♦^. Talcott, 
H. Bleecker, Herman J. Recffield, esquires. 



D. 

Letter from the J\'eio-York, to the JVew- Jersey Commissioners. 

Albany, September 17th, 1827. 
Gentlemen, 

In respect to your note of this evening, which we have had 
the honour to receive, and which suggests the expediency of 
submitting the matters in controversy between the two states to 
the decision of the Supreme Court of the United States, we 
beg leave respectfully to state, that although it was a subject of 
conversation between the members of the two boards, whether 
such a course might not become advisable in case of their dis- 
agreement, it was not suggested on the part of the commissioners 
of New-York, that we had the power to agree to such submis- 
sion, or that the act of appointing us required or would sanction 
a recommendation to our legislature to pass any other act upon 
the subject. 

Appointed ourselves especially for the purpose of adjusting 
with the commissioners on the part of New-Jersey, the ditTeren- 
ces between the two states, and having to our great regret failed 
to accomplish this desirable object, we think that it does not 
belong to us to point out to those, from whom we have derived 
our authority, the course which, under such circumstances it be* 
comes them to pursue. Such we would with all deference sug 
gest, might perhaps more properly be effected by a correspon- 



26 

uence between the executives of the two states, and by such 
recommendations as they might respectively make to the legis- 
latures of each. 

This we believe is the usual channel through which such re- 
commendations are made, and \^e legislature of the state we re- 
present would certainly receive a communication of that nature. 
with all that consideration and respect which is due to the state 
of New-Jersey. 

We are, gentlemen, with the most respectful consideration, 
your obedient servants, 

JOHN T. IRVING, 
NATHANIEL PITCHER, 
SAMUEL A. TALCOTT, 
H. BLEECKER, 
HERMAN J. REDFIELD. 

To Richard StocJdo7i, John Rutherfurd, Theodore Freling- 
huyseiij James Parker, Lucius Q. C, Elmer, esquires. Com 
missioners. 



The following facts and argument j in relation to the matters in 
controversy between JVew-Jersey and JVew- York, are submitted 
hy the Commissioners of Ntw-Jersey to the Legislature. 



The controversy between the states of New-Jer- 
sey and New- York, in regard to the eastern boun- 
dary of New -Jersey, naturally divides itself into two 
general heads. 

First. The right of New-Jersey in the Hudson 
river and the other dividing waters. 

Second. Her riijht to Staten Island. 

I. Or THE RIVER Hudson and the dividing waters. 

It is contended for New-Jersey, that the Hudson river and 
the other waters " leading unto'^ her territory, were conveyed 
to the proprietors of New-Jersey at least as early as the year 
1682, for the purposes of "navigation, free trade, fishing, or 
otherwise," namely, for all other purposes to which such waters 
ought to be appropriated : and that this general proposition can 
be maintained, whether the grants under which she claims are 
considered merely as conveyances between individuals, and to 
be tested by the general rules of construction applicable to such 
instruments, or as grants of territory, jurisdiction, and govern- 
ment, made by a sovereign power for the purpose of creating a 
political state and constitution, and to be construed as such, ac- 
cording to the more liberal principles of the public law, called 
the law of nations. 

A concise view of the origin of the English title to this part 
of North America, will properly precede an examination of this 
assertion. Sebastian Cabot, a natural born "British subject, dis- 
covered the continent of North America in the year 1497, and 
coasted from Newfoundland to Cape Florida. 

Smith, the historian of New-Jersey, remarks, that from " this 
discovery and voyage the English have claimed the country 
ever since, by the well known jus gentium, which declares, that 
whatever waste or uncultivated country is discovered, it is the 



28 

right of that prince who has been at the charge of the discovery." 
Several futile attempts to settle the country had been made 
by the British government in early times. 

In 1584, queen Elizabeth granted to Sir Walter Raleigh all 
such countries in America as were not then possessed or inha- 
bited by christian people, under which grant a settlement was 
made in Virginia. 

In 1606, James I. granted a new patent of Virginia, which in- 
cluded within its limits New-England, New- York, New- Jersey, 
Pennsylvania, Dchnvare, and Maryland, the whole country then 
bearing the name of Virginia. Under this patent, a settlement 
was made, but its affairs were so mismanaged that the patent 
was declared forfeited on a quo warranto, after which the whole 
was re-annexed to the crown. 

The languishing condition of these settlements attempted by 
the English, induced the Dutch to set up a claim to that part of 
the country which now includes the stales of New-York and 
New-Jersey. Henry Hudson, an Englishman in the service of 
the States of Holland, was, in 1609, sent out by the Dutch In- 
dia Company on a voyage to discover a north-west passage to 
the East Indies. He touched at New-York, and sailed up the 
river, which was, after him, called the Hudson. The Dutch af- 
terwards made a settlement at New-York and in the adjacent 
parts of New-Jersey, and pretended that the whole territory be- 
longed to the West India Company, under the States General. 
They built a fort at New- York, and another on the Delaware, 
laid out a garden and furm at Horsimus, and sent out many ac- 
tual settlers from Holland, who took possession of large tracts 
of land in both states, as subjects of the States General. In the 
mean while, the civil war in England so engrossed the attention 
of the English, that the Dutch were permitted to retain their 
possession until after the restoration of king Charles II. 

After this event took place, the plan of asserting the English 
title to that part of the continent into which the Dutch had in- 
truded, was once again revived ; and that it might be regained 
and secured, and settled by English suhjecis upon a large scale, 
it was resolved by the king and his council lo create a princi- 



29 

pality in favour of the Duke of York, the king's only brother, 
and the heir apparent of the crown j and that, for the purpose of 
immediate colonization, the duke should convey that part of his 
domain which now constitutes the state of New- Jersey, to Lord 
Berkley and Sir George Carteret, two of the king's privy coun- 
cil. In pursuance of this great plan of colonization, the king 
granted all the country from Nova Scotia to Delaware bay to 
the duke, on the 20th March, iG64, and in June of the same 
year the duke conveyed New-Jersey to Berkley and Carteret. 

To make these grants efFeciual, and to dispossess the Dutch, 
who were considered as intruders, an armament had been pre- 
pared, and a fleet, with troops on board, sailed from England a 
few weeks after the grant to the duke, that is to say, on or about 
the 26th April, 1G64, a state of war not then existing between 
England and the States of Holland. This force arrived, and 
achieved the purpose for which it was fitted out, by dispossess- 
ing the Dutch, in the month of August of the same year, 1664^ 
and by putting the grantees, Carteret and Berkley, in posses- 
sion of New-Jersey. As soon as the news of the surrender of 
the country by the Dutch arrived in England, the proprietors 
set about their great work of settling it by English adventurers. 
They had not been idle from the time they received their grant, 
but had well considered and matured their plan. On the 10th 
February, 1664, (old style) in less than a year from the date of 
the king's grant to the duke, they published to the people of 
England the principles upon which they were willing to plant 
and govern their intended colony. On that day, under the de- 
signation of grants and concessions, they published their first 
state paper, offering to the settlers a free plan of government, to 
consist of a legislature composed of a governor, council, and as- 
sembly, to be composed of delegates to be chosen annually by 
the people; a judiciary department suited to the infant state of 
the colony; a militia for public defence, and the general rules 
to be observed in the sale, purchase, and laying off of lands. 

This paper is a written conslimtion, and has ingrafteil into it 
the most approved principles of English liberty. Its sole object 
was to invite and encourage the seitieraent of the colony, by the 



30 

offer of a free conslituiion, securing to the adventurers the bless- 
ing of civil and religious liberty. In truth it is the same substan- 
tially as that under which New-Jersey lived until the revolution: 
nay, it may be further said, that the present constitution of the 
state differs from it no more than was naturally consequent on 
independence of the crown of England. On the same day, 10th 
February, 1664, the proprietors appointed Philip Carteret their 
first governor. 

This review of the early history of the state clearly evinces 
that these grants or conveyances were all made with the intent, 
and for the purpose of settling a new colony, of creating a new 
state. The duke, being the owner of a domain extending far to 
the east and north, grants New-Jersey to Berkley and Carteret, 
that they ^^ might plant a colony.''^ He reserves New- York to 
himself, that he or his immediate agents might not only watch 
over and keep in subjection the foreigners who had settled the 
country, but mix them up with a much larger number of English 
subjects, and thus lay the foundation of another distinct sove- 
reignty, to be governed by his authority under the protection of 
the crown of England. 

The result is, that these grants are not to be considered as 
merely muniments of title, as private deeds between individuals, 
but as grants of territory, jurisdiction, and government, intended 
to c?ill into existence a new people, and to create a new political 
state. They are all in pari materiaj parts of the same transac- 
tion ; they have the same objects; they deal with matters of 
state and sovereignty; tliey take their origin from the jus gen" 
(ium, and must especially now upon a controversy of limits and 
jurisdiction between two sovereign states, be tested by the great 
principles of public law recognized by all civilized nations in the 
settlement of such disputes. The first grant of the king to the 
duke bears date on the 12th March, 1664. It grants to the duke, 
liis heirs, and assigns for ever inter alia *' the Hudson river" 
and all the lands from the west side of Connecticut, to the east 
side of Delaware bay," including the states of New-York and 
New-Jersey. This territory is to be holden of the crown of 
England, in free and common soccage. 



31 

" It also gives and grants to the duke, his heirs, deputies, 
agents, commissioners, and assigns full and absolute power and 
authority" to correct, punish, pardon, govern, and " rule ac- 
cording to such laws, orders, Jkc. as the duke or his assigns shall 
establish; and in default thereof, in case of necessity according 
to the good discretion of his deputies or assigns, as well in causes 
and matters capital and criminal as civil, both marine and others, 
so as the said statutes and proceedings be not contrary to, but 
as near as may be agreeable to the laws of England, saving also 
an appeal to the king on any judgment or sentence," &c. 

I^ adds also the right to bring over British subjects, to exer- 
cise martial law, to make defensive war, and regulate commerce; 
in fine, as to this territory, it invests the duke and his assigns 
with all the regalia of the crown. 

It createafa sub-royalty in favour of the duke, his heirs, and 
assigns, subject only to the general lie of allegiance to kings of 
England. 

The right of the king to make such a grant to a subject can- 
not be brought into debate. 

The kings of England, prior to the revolution of 1668, claim- 
ed and exercised that right even in England, and without the 
concurrence of parliament. 

Such were the counties palatine of Chester, Durham, and 
Lancaster, granted in ancient times to distinguished individuals.* 
They were called counties palatine, from the words pal atio re- 
gis, (palace of the king,) and Judge Blackstone says that the 
owners had "jura regalia'^ as fully as the king hath in his pa- 
lace. But as to newly discovered countries acquired by conquest, 
or driving out the natives by British subjects, these were espe- 
cially assigned to the king as his prerogative, who gave to the 
settlers such laws and constitutions as he pleased. f Speaking of 
the American colonies, Blackstone says, '* they were governed 
either by royal or proprietary governments, which latter were 
granted out by the crown to individuals, in the nature of feudal 
principalities, with all the inferior regalities of subordinate pow- 
ers of lesiislation which belonged to counties palatine^X 

■ 1 Black. Com. H6 17. t Ibid. 107. % Ibid. 108. 



32 

Lord Mansfield on our subject says, " after the conquest of 
New-York, in which most of the old Dutch inhabitants remain- 
ed, king Charles II. changed the form of their constitution and 
political government, by granting it to the Duke of York, to be 
held of his crown under all the regulations contained in his pa- 
tent* 

The learned commentator Blackstone, calls the governments 
thus created "subordinate royalties," he considers the grams as 
legal, and v^esting in the grantees all the powers enumerated. 

In the case of Hall and Campbell, Lord Mansfield considers 
the king as having acquired New-York by conquest from the 
Dutch, and lays down the law thus, " the laws of the conquered 
country remain in force until they are altered by the conqueror." 
The Dutch laws would therefore have privilege, but he had 
taken care to " change their constitution and poliiical govern- 
ment" by the grant to the duke. The grant of the duke to Berk- 
ley and Carteret, was to carry into effect such change, as far as 
related to New-Jersey, part of which had been actually coloni- 
zed by the Dutch, and the whole of which was claimed by them. 
The proprietors were substituted in the place of the duke, ac- 
cording to the stipulations of the patent, and became ihe sub-so- 
vereigns of the territory as fully as the duke would have been, 
had he made no grant. And so ihey remained until they surren 
dered the government to queen Anne. 

The Duke of York being thus prince, owner, and legislator, 
determined to divide his vast domain, to create a new state in- 
dependent of him, to be planted by others with British subjects 
and adventurers, to whfch he gave the name of New-Jersey. 

This is the description of the country granted to Lord Berk- 
ley and Sir George Carteret, " all that part of land adjacent to 
New-England, and lying and being to the westivard of Long Is- 
land and Manhatten Island, and bounded on the east by the main 
sea and Hudson's river, and hath upon the west Delaware bay 
or river, and extends the southward to the main ocean as far as 
Cape May, at the mouth of Delaware bay, and to the northward 
as far as the northermost of the said bay or river Delaware, j 
" Cowper's Rep. 211, Hall r. Campbell. 



33 

which is 41 degrees 40 minutes of latitude, and crosses thence in 
astrai§;ht line to the Hudson river, in 41 degrees of latitude, to 
be called by the name of Nova Csesarea, or Nevv-Jorsey, " to- 
gether with ail the rivers, mines, minerals, woods, 6sliings, fowl- 
ings, Sic. and other royalties, profits, &c. to the same belonging, 
in as full and ample a manner as the same are granted to the 
Duke of York. Upon the making of this grant, the proprietors 
took possession. The concessions, or constitution of February 
1664, before mentioned, induced many lo emigrate from Eng- 
land. They were published also in New-England, and the liberal 
plan of government established, induced many settlers to remove 
from those parts.* Philip Carteret came over in 1665, and as 
early as the 30ih May, 1668, a legislative body consisting of a 
governor, council, and house of burgesses, elected by the peo- 
ple, met in general assembly. 

In 1673, the Dutch re-conquered the country, but shortly af- 
ter it was restored, and finally secured to the English by the 
treaty of peace between Great Britain and the States of Holland. 

These transactions it was supposed, made it proper that new 
grants should be made to the duke, and to the proprietors, and 
accordingly in 1674, the king again granted the same domain to 
the duke ; and he also granted to Sir George Carteret the east- 
ern part of New-Jersey; and afterwards the western part to the 
grantees of Lord Berkley, in the same terms, and with the same 
powers as are used and conveyed by the former. Nevertheless, 
the claim of the proprietors to the rights of government were 
still disputed. These powers had been expressly granted by the 
king to the Duke, as has been already seen ; but in his grants to 
the proprietors are to be found only the general description of 
" rivers, mines, minerals, &;c. and other royalties," which might 
be satisfied without construing them to include the great powers 
of political government. Sir Edmund Andross, the duke's go- 
vernor of New-York, denied the right of the proprietors in this 
respect, and went so far in the year 1680, as to send an armed 
force to Elizabeth-Town, which made Philip Carieret the pro- 
prietary governor a prisoner, and brought him forcibly to New- 
* Smith's History 67. 



34 

York, where he was indicted and tried for usurping the king's 
government in New- Jersey. He was acquitted by the jury, not- 
withstanding all the influence of the governor and the court was 
employed to procure his conviction, and the conduct and pro- 
ceedings of Andross were censured and disavowed in England 
by the king and the duke. 

Meanwhile, a partition of New-Jersey had taken place, and 
East-Jersey had been assigned to Sir George Carteret, and 
West Jersey to the grantees of Lord Berkley. Conveyances had 
been made of East-Jersey to twenty-four persons, afterwards 
called the twenty-four proprietors. To free the proprietary go- 
vernor from all the doubts arising out of these events, to explain 
the domain and powers intended to be conveyed by the former 
grants, which are recited, the Duke of York made a confirma- 
tory grant in the year 1682, to the eastern proprietors. By it he 
alters the phraseology of the first grants in regard to rivers, which 
merely included rivers as appurtenances, in these general terms, 
" together with all rivers, &ic." which might be satisfied by in- 
ternal rivers. But this additional confirmatory grant adds this 
important section, not to be found in the former grants, namely, 
" and also all islands, forts, &ic. whatever, to the same belonging. 
And also the free use of all bays, rivers, and waters, leading 
unto, or lying between the said premises, for navigation, free 
trade, fshing, or othenoise.'^ 

" And for the better enabling the grantees to improve and 
plant the said piemhes with peopZe, and to exercise all necessa- 
ry government there, whereby the said premises may be the bet- 
ter improved, and made more useful to them, their heirs and as- 
signs, he gives, grants and transfers to them, their heirs and as- 
signs, proprietors of the said province of East New-Jersey, for 
the lime bemg, all and every such and the same powers, autho- 
rities, jurisdictions, governments, and all matters and things what- 
soever, which by the said letters patent were granted to the 
Duke of York," to be exercised as fully, and to all intents and 
purposes, as the duke might have done. 

This last grant is a public and solemn act, whereby a former 
sovereign grants and confirms to a stale already in existence, and 



35 

in actual possession, all the rights remaining in him, or wliicli 
might be supposed to remain by reason of the inaccuracy of for- 
mer grants ; and it is entitled to the benefit of the same rules of 
construction as would be applied to a treaty of limits, boundary 
and jurisdiction between independent states. 

It is true these grants and conveyances are not in the form ol 
written conventions or treaties, but appear in the shape of grants 
or deeds of land, to take eflect under the statute of uses. The 
duke's first grant to Berkley and Carteret, is by lease and re- 
lease, and refers expressly to the statute of uses for its efficacy ; 
and the deed of confirmation of 1682, is thrown into the shape 
of a deed of bargain and sale, having a pecuniary consideration, 
and all the words commonly employed in such conveyances. 

It will therefore be proper to inquire and consider what 
construction the common law will give to the terms of this grant. 
The operative words are these, " all that tract of land adjacent 
to New England, and lying and being to the westward of Long 
Island, and Manhattan Island, bounded on the east, part by the 
main sea, and part by Hudson's river." The rule is, that the 
construction must be favorable to the grantee, and against the 
grantor.* This river and all the dividing waters are notoriously to 
the westward of Long Island, and Manhattan Island, and 
therefore are within the descriptive words of the grant. The 
land to the westward of these islands passed by express words. 
This term is of great extent in its legal operation, including all 
above, and all below the soil, and therefore embraces all the 
lands to the westward covered by water. Unless the words de- 
scribing the land granted are rejected, New-Jersey must begin 
where those islands end. Nor ought they to be departed from in 
favour of the grantor, because he has added a general boundary, 
calculated to make it vague and uncertain. If a conflict exists 
between a particular description, and a general boundary, the 
latter ought to yield to the former, for it is an established rule in 
the construction of deeds, that if the granting words are suffi- 
cient to ascertain the lands intended to be conveyed, they shall 
pass, although they do not correspond to some of the particulars 
* 3 Johns Rep, 375. 



36 

of the description.* Then as no doubt can exist of the intention 
to pass all the lands to the west of these two islands, the addi- 
tional description which makes the eastern boundary to be the 
main sea and the Hudson, ought not to lessen or impair the be- 
nefits of the grant in favour of the grantor, and against the grantees. 

But if the words of description and boundary can be recon- 
ciled, it is proper so to do. This may be effected by construing 
the eastern boundary on the Hudson, to mean that part of the 
Hudson which bounds the islands to the eastward of the river, 
then the eastern boundary of New-Jersey would be the eastj 
and not the west side of the" river, and all the words descriptive 
of the premises will be fully satisfied. This it is conceived was 
the true legal construction of these grants when they were made. 
But if it should be admitted that we must noto be contented with 
a more restricted boundary, flowing from a construction favour- 
able to the grantor, and against the grantees, the question will 
be, what land did pass, and what estate and right in these waters 
as connected with the land. Admitting that the river is our east- 
ern boundary, yet not only is the land quite up to the river grant- 
ed, but also the " free use of all bays, rivers, and waters, leading 
unto, or lying between the said premises, for navigation, free 
. trade, fishing, or otherwise." These words convey not only the 
^_. fee simple of the lands up to the very river, but also a right 
anc? es^ai^e in fAe twaiers," to secure to the proprietors the fran- 
chises of navigation, free trade, fishing, and all other liberties 
and privileges of the like nature, so as they might be held and 
enjoyed, not only without restraint, interruption, or regulation, but 
as of their own proper estate, wholly independent of the duke or 
his substitutes. 

When any thing is granted, "all the means to attain it, and all 
the fruits and effects of it are granted also, and shall pass inclu- 
sive together with the thing, by the grant of the thing itself." 
Now the things granted are not only the land, but the " free use 
of the waters for navigation, free trade, fishing and otherwise."! 
Water, strictly speaking, is not the subject of grant, for it is a 
•4 Mass. Rep 196 7 Johns. Rep 217. 6Cranch,237. 
I Shop. Touch. 85. Co. Lilt. 56 2 Black. Com. 36. 



37 

"moveable, wandering thing,"* and is only the subject of a tem- 
porary, transient, usufructory property. Hence no action will lie 
to recover water, even in a pond, watercourse, or rivulet, "but it 
must be for the land that lies at the bottom.'' 

By a grant then of the use of all the waters for the purposes of 
navigation, free trade, and fishing, the waters, or the soil under 
the waters must pass, so far as at least to secure to the grantees, 
" the fruits and effects" of the things so granted, and to protect 
them in the full and uninterrupted enjoyment thereof. 

1. It conveys a full right of navigation over all the waters. 
This means something more than the common right to navigate 
the sea, its arms and branches. Such a general right needs no 
grant to pass it'; it belongs to the whole human race by the law 
of nature, and is so recognized by the law of nations. It means 
an unfettered right of navigation to be secured to the grantees, 
their heirs and assig-is, not subject to restriction, regulation, or 
taxation by a foreign legislature, or a foreign corporation. But 
if New-Jersey has no property in these waters, then might New- 
York, by undue and severe regulations, or extravagant duties, 
impair, or even destroy this important franchise, and New- Jer- 
sey would be a mere tenant at will to her powerful neighbour. 

2. " Free trade." How shall the grant of the use of these wa- 
ters for free trade enure .'' It conveys these waters for the impor- 
tant purposes of a free and independent commerce, to and frotn 
our shores ; and all the incidents of such a commerce, such as the 
right of building wharves and storehouses upon the rivers, and 
on the sides thereof, from whence such commerce is to be car- 
ried on, pass with it. 

3. "For fishing." This is not a mere recognition of the gene- 
ral right of common fishery, which js claimed by the great mass 
of the people, in virtue of the common law ; hut a pardcvlaT 
right of fishery is conveyed to the grantees, their heirs and as- 
signs, in and upon these waters, and consequently an estate in 
these waters, so far as is necessary to secure this right. To this 
grant is also annexed the powers of government, so that the right 
to regulate fisheries by legislative acts also resulted to New-Jer- 

"" 2 Black. 18. 



38 

sey. But if New-Jersey has no right or liile to the river, tlien 
none of her people can own or possess fisheries adjoining their 
own farms, nor could the state claim them, or even regulate them 
by law. New-Jersey and her people are all dependant on New- 
York for the enjoyment of these granted rights. 

And what is the construction which the law will put on the 
words " or otherwise" ? Are they to be rejected f Were they in- 
serted through ignorance or haste ? Not so : all these patents, 
grants, and conveyances were drawn with the utmost care and 
precision, under the direction of the law officers of the crown. 
Every word was weighed, its legal interpretation understood, 
and its office assigned. These superadded words were intended 
to embrace any reasonable rights in the waters, which, though 
they might not be directly within the strict interpretation of the 
preceding terms, (navigation, free trade, or fishing) were still of 
the same nature and character, and within the same reason ; and 
all such were intended to be granted. 

As this instrument also conveyed the regalia, right of govern- 
ment, and jurisdiction to the proprietors, that jurisdiction ex- 
tended not only over the lauds which formed the territory, but 
also over all and every matter or privilege conveyed by it, so 
far as was necessary to its full and complete protection. After this 
grant, it was not competent for the duke to exercise a jurisdic- 
tion, or permit others to exercise it, which might impair or de- 
stroy the rights thus granted away. But to convey to his colony 
of New-York an absolute right to the waters, or to extend their 
jurisdiction over the whole river, would at once impair the grant, 
by subjecting the navigation, trade, and fisheries of New-Jersey 
to the legislation of New-York. The duke himself could not 
lawfully have exercised such authority, much less could his 
agents, or the members of the colonial government of New- York 
established by him. The truth is, that after this grant of 1682, 
no absolute property in these waters could remain in the duke 
or his colony. Dr. Rutherforth, vol. i. p. 72, of his treatise on 
natural law, speaking of an original owner, says, *' if any person 
besides himself may lawfully claim to use what belongs to him, 
he (the original owner) cannot have the full and free use of it." 



39 

It operates as a conveyance and limitation of his riglit. If it be 
asked, what is the extent of these water rights of New-Jersey ; 
whether they extend over the whole or what part of the river j 
and whether they are exclusive or concurrent in regard to New- 
York ; tiie answer is, that this must depend on the subject 
matter, the nature, and character of each of these privileges. 
The first, the right of *' navigation," is co-extensive v;iili the 
waters, but in its nature is not exclusive, because it belongs to 
the human race; but New- York has no right to regulate it against 
New-Jersey while her citizens are on the waters, for New-Jersey 
has the right to navigate all the waters by prior grant from the 
owner of the river. Hence it was that New-Jersey has asserted 
this right by statute, as often as the subject has been brought up. 
By the act of November 10, 1804, to incorporate the Associates 
of the Jersey Company, sec. 3, it is enacted, that they shall have 
the privilege of ereciing or building docks, wharves, and piers in 
the Hudson river and bays, as far as they may deem it necessary* 
The act of 25th January, 181 1, has this recital: " Whereas the 
state of New- York do unjustly claim a jurisdiction exclusively of 
the state of New-Jersey over all the waters between the shores 
of the two stales; and whereas tlie citizens of New-Jersey have 
a full and equal right to navigate, and to have and use vessels or 
boats upon all the waters lying between the states of New-Jersey 
and New-York, in all cases whatsoever not prohibited by the 
constitution or any law of the United States."f The.same princi- 
ple is uniformly asserted in all the statutes which have been 
passed on this subject. New-Jersey, from its first settlement, has 
been in possession of and has used all these waters, as belong- 
ing to her of right, for the purposes mentioned in the grant; and 
as long as chartered rights and solemn conveyances stand for 
any thing she must be considered as well warranted in makine; 
such a claim. The use of the waters for " free trade," expressly 
granted, could not be satisfied or secured to New- Jersey with- 
out the right of making wharves and erecting storehouses into 
and upon these waters, nor without a jurisdiction at least to the 
middle of the river, for the protection of this properly, and of 
" Bloom. Ed. 128. ^ R»v. T,aws517 S. 



40 

our citizen! enga2;ed in commerce, their vessels, boats, and ships- 
This right of jurisdiction has also been expressly asserted by 
the statute establishing the boundaries of the county of Bergen. 
In the opinion of Judge Washington (as we shall hereafter shew) 
this granted use, followed up by actual occupation, has now ri- 
pened into a right of property to at least one half of the waters, 
because on any other principle we are at the mercy of New- 
York. If she has both ownership and jurisdiction up to our very 
shores or wharves, she might have destroyed at any time this 
granted " free trade" by her legislation, by exacting heavy im- 
posts; by imposing duties for her own benefit upon all vessels 
going out or coming into our ports; by the creation of monopo- 
lies in favour of her own citizens, or by any other vexatious ex- 
actions or restrictions. AH this she might have done from the 
earliest times until the adoption of the present constitution of 
the United States. This great national charter, and the indepen- 
dence and intelligence of the judiciary department, has recently 
been found to afford a substantial protection ; but the necessity 
of recurring to it, furnishes a striking illustration of the .condi- 
tion to which we might have been reduced, and may yet be re- 
duced in matters not within the scope of that constitution, if the 
high and unjust pretensions of New-York should be silently ac- 
quiesced in by New-Jersey. To give effect to these grants, we 
must go back to the times when they were made. AH the pro- 
perty, rights, privileges, and consequent jurisdiction which pass- 
ed when the conveyances were made, siill remain, unless they 
have been surrendered. The constitution is a check upon New- 
York, but affords no aid in the construction of these instruments. 
Such a construction ought to be made now, as would have effec- 
tually secured to New-Jersey all the stipulated privileges at the 
time of the grants, and from that time to this, for on the faith of 
these the first colonists crossed the sea and came into the wil- 
derness; the public faith was pledged to them in the grants and 
concessions that they should participate and enjoy the full bene- 
fit of the great waters leading unto the territory, for all appro- 
priate purposes. They and their posterity could only be secured 
in these most important rights, by a liberal construction accor- 



41 

ding to ihe approved principles of public law, and the true ui- 
terest and meaning of all the parties to this interesting transac-^ 
lion at the time. 

Hitherto we have considered the grants of the duke of York 
to the proprietors, and particularly thegreat confirmatory instru- 
ment of 1682, as private con 3P ' m fmmlt,to be construed by the 
rules adopted in the construction of deeds by the common law. 

But this is a narrow and confined view of the subject, and 
neither so correct or just as that which we shall now take. In 
the historical outline of these transactions which we have alrea- 
dy traced, it is manifest that the grants of the king to the duke, 
and of the duke to the first proprietors, and the concessions or 
constitution offered by the latter to enable them to " plant the 
colony with people," are to be considered as parts of the same 
transaction, and all intended to promote the colonization and 
settlement of the wilderness in America. They constitute a series 
of state papers. The first creates a vice royal principality in the 
person of the duke, to whom is conveyed the regalia of the 
crown in respect to this territory. The others divide off that part 
called New-Jersey from the rest, for the express purpose of cre- 
ating a new state or colony independent of the duke, with a so- 
lemn investment of all the powers of government, and subject 
only to a general allegiance to the crown of England. Between 
the two parts a great river or arm of the sea runs; it divides the one 
from the other, and is not only the natural boundary between 
them, but also the conventional boundary contemplated by the 
sovereign and expressly designated by his grants. The country 
was acquired by the British monarch under the jus gentium, or 
the laws of nations. The instruments dividing and parcelling it 
out among others, for the purpose of creating new colonies or 
states, partake more of the nature of public conventions or trea- 
ties than of private conveyances; and in questions of boundary 
and limits, they should be tested by the same law, which is no- 
thing more than the application of these principles of justice and 
reason, to the subject which has received the sanction of the 
whole civilized world. To construe these solemn instruments now, 
otherwise than to effectuate the intent of the parties upon the 

F 



42 

iijost liberal principles, and in favour of the colonists, would be 
a manifest breach of public faith, as we have already shewn. 
This great natural boundary between New-York and New-Jer- 
sey, was established with a view to public convenience, and so 
far from any intention to exclude New-Jersey from an equal , 
participation with New^Xi0*4{v»H> the benefits of the dividing wa- 
ters, the reverse is apparent on the face of the record which se- 
cured to us at least the use thereof, for all the purposes of " na- 
vigation, free trade, and fishing, or otherwise." And what other or 
different use of the waters, it may be asked, could remain or re^ 
suit to New-York ? 

In the case of Handley's lessee against Anthony,* the Supreme 
Court of the United States adopts one position. These are the 
words of C. J. Marshall, "in great questions which concern the 
boundary of states, where great natural boundaries are esta- 
blished in general terms, with a view to public convenience and 
the avoidance of controversy, we think the great object where ii 
can be distinctly perceived, ought not to be defeated by these 
technical perplexities which may sometimes influence contracts 
between individuals." If therefore the rules of the common law 
as applied to these instruments, would exclude New-Jersey fronri 
the dividing waters, and confine her either to high or low water 
mark on her own shores, (which however we have denied to b^, 
true,) still we may claim it by the more liberal rules of national 
law. 

Adopting the rule of this law as to river boundaries, the couri 
says, " when a great river is the boundary between two nations 
or states, if the original property is in neither, and there 15 
no convention respecting it, each extends to the middle of the 
liver, "f 

In our case the original property was in the Duke of York. 
He, through the agency of his grantees, planted a colony on the 
west side of the Hudson, and another on the east side. The ri- 
ver is the boundary he gives; each then extends to the middle of 
the river. 

We shew a convention, an agreement which accords to New- 
" 5 Crancb, 382. 1 Ibid. 379. 



43 

Jersey the unqualified use of ihe river, for all the purposes of 
" navigation, commerce , fishing, or otherivise.^^ There is no such 
convention to be seen in favour of New- York ; yet does she 
claim the entire ownership to the exclusion of New-Jersey. 

If the colony of New-York succeeded to all the remaining 
domain of the duke, (for which she can shew no tide,) could she, 
as representing the duke, exclude New- Jersey in the face of his 
own solemn conveyance and convention ? In a political view, 
the rights claimed by New-Jersey were essential to her safety, 
and even lo her existence as a slate. How was her eastern mari- 
time frontier to be defended against an enemy in time of war, 
without the right to construct works and build forts, which it 
might be expedient and necessary lo run out into the water by 
artificial means? Must she ask permission first from her power- 
ful neighbour ? Until the constitution of the United States pro- 
vided for the public defence, New- Jersey might have found her- 
self dependant on her own exertions in this vital concern. 

The rules laid down by the Supreme Court of the United 
States, are taken from Vattel, lib. i. ch. 22. 

In section 2G6 of that chapter we find this rule, speaking of a 
river boundary he says, "if neither of the two nations near the 
river can prove that it first setUed in those countries, it is sup- 
posed that they both came there at the same lime, and in this 
case the dominion of each will extend to the middle of the river J'^ 

New-York could never pretend to any thing more ihan a si- 
multaneous colonization with New-Jersey. 

Admitting that the Dutch were the first who actually planted 
a colony in these parts, yet that colony extended over to New- 
Jersey. The eastern part of New-Jersey was setUed by the 
Dutch, at the same lime that they fixed themselves in New- 
York, and both parts were under the same government. 

This settlement, however, considered as a political state, was 
extinguished and destroyed by force of arms. 

New-Jersey was actually conveyed away by the duke, and 
divided off into a separate colony in June, 1664, when the Dutch 
were in possession, and wJien the colony of New- York did not 
exist ; so that New-Jersey seems to be entitled to all the benefit 



44 

which would accrue from prior possession, colonization, and 
government, against the colony or government of New-York. 

Again, the same author {J^uitel, lib. i. ch. 22. sec. 266) lays 
down this principle, " if a nation fixing itself on a river has 
made any use of the river for navigation or fishing, it is pre- 
sumed (by the law,) with the greater certainty that it has resolved 
to appropriate the river to itself" If such be the rule in respect 
to an unappropriated river, a fortiori must it be so, when 
the owner of the river expressly grants the vse of the river to a 
colony emigrating thither, for the purposes of navigation, com- 
merce, or fishing. Water is not susceptible of any other owner- 
ship than for these purposes and their incidents, and a grant to a 
colony /or such uses carries with it both property and jurisdiction. 

This reasoning is adopted by Judge Washington, and applied 
to this very subject, as will be hereafter shewn. From all which it 
results, that by force of the grants and conventions made be- 
tween the Duke of York and the proprietors, New-Jersey has a 
river boundary similar to that wkich remained for New -York, 
and also a property in the water, for the uses and purposes ex- 
pressed, namely, of navigation, free trade, fishing, and for all 
other uses and purposes of the like nature and character, found- 
ed upon the most approved rules and principles of the jus pub- 
licum, by which the whole was originally acquired ; and that 
these rights must be extended at least to the middle of the ri- 
vers and waters. Every principle of public convenience, of jus- 
tice and of reason seems to unite in the conclusion, that when 
two colonies are placed on each side of a great river, the river 
and other waters should be divided between them, in property 
and jurisdiction, and that each have a right over the whole for 
the purpose of navigation, to which they have a common title 
through him who made the water and the dry land for the use 
and benefit of mankind. 

Vattel, as to jurisdiction, in the same chapter says, " the em- 
pire and jurisdiction over lakes and rivers, is subject to the same 
rules as property, in all the cases we have examined. Each state 
has naturally a jurisdiction over a part, or over the whole."* 
• Vattel, lib. i. chap. 22. sec. 278. 



45 

3. But if the title of New-Jersey to the properly of the di- 
viding waters on her own shores, adjilum aquce, cannot be sus- 
tained upon the reasoning before submitted, there still remains a 
ground which conducts us to the same result, and appears to be 
conclusive. 

The grant of the king to the duke is not only of the whole 
country east, and south, and west of the Hudson, but of the ri- 
ver Hudson itself in terms, and of all other rivers, bays, and wa- 
ters appertaining to the granted territory. That the king had a 
right to grant these waters, together with the powers of govern- 
ment and other regalia of the crown of England, and annex 
them to the principality granted to the duke in America, was 
never doubted in England at the time, nor in America ; but on 
the contrary, the grant, together with all that it purports to con- 
vey, was repeatedly, and by the most deliberate acts confirmed 
by the kings of England, and all our titles in both states are de- 
rived from this patent. But if a doubt upon this point could be 
raised by New-York, the result will be tiie same. The duke 
succeeded to the crown of England in the year 1685. 

If those waters did not pass to him by the grant of king 
Charles his brother, they remained in the croion of England, and 
descended therewith to the duke. If they did pass to the duke, 
they became re-annexed to the crown by his accession thereto- 
These and all the other subordinate regalia of the duke were 
merged by that event in the supreme royalty over all the realm ol 
England and her foreign plantations which fell to him by here- 
ditary succession and descent. 

By the common law of England, the king, jure corona;, is the 
owner of the shores of the sea, and of all rivers, bays, and wa- 
ters in which the tide ebbs and flows.* The state of New- York 
can have no title nor permanent jurisdiction over these waters, 
unless she can produce'a grant from the crown of England, 
conveying them to the colony of New-York or some other 
grantee. No such conveyance or grant can be shewn, be- 
cause none ever existed. It was never the intention of the kings 
of England, after these waters had become re-annexed to the 
Davis' Rep. 152-5. Harg. L. T. 10, 11. 6 Com, Dig. title Prerogative 65. 



46 

oiown, to grant them either to individuals or to corporations. 
The country was so rapidly growing into political consequence, 
that the impropriety of making any further grants of the great 
rivers and arms of the sea became palpable and self-evident. 

That the duke never granted the territory of New-York, as 
he did that of New-Jersey, is a fact not to be disputed. He re- 
tained it, and governed it by his governors, who were his depu- 
ties and lieutenants. All the ancient grants and patents made 
while he was duke or king to individuals, or by the colonial go- 
vernment established by him, are limited to low water mark on 
their own shores. No grant or patent extending farther into the 
river has been shewn, and it is confidently believed that none 
such exists. The public acts done soon after the establishment 
of the English title, when the rights of all parties were well 
known, and the intention of the grants must have been fully as- 
certained, set up no pretension of ownership to the waters in 
controversy on the contrary they clearly demonstrate that in 
those days the colony of New-York made no such claim. 

If that colony had a good title to those waters, what more pro- 
per occasions for asserting it could have occurred than when the 
first charter was granted to the city of New- York, and when 
their counties were laid out upon those waters, from that city up 
to Albany along the Hudson.'^ The first charter to the city was 
granted in the year 1686, the year after the duke had become 
king of England. It gives the city boundary, and assigns to it 
"all Manhattan Island, and extends it in and upon " all rivers, 
rivulets, creeks, waters, watercourses" as far as low water mark, 
that is to say, low water mark on their own shores. 

In 1708, another charter was granted, the object of which 
seems to have been, to take in "the vacant and unappropiiated 
land on Long Island from high water mark to low water mark, 
fronting the said city." It meddles not with the dividing waters. 

As early as 1683, an act or ordinance had passed laying oft' 
several counties, and ascertaining their respective boundaries. 
But the settlement of the country had been so rapid, that in 
3691 it was found necessary to revise this act, and establish the 
county boundaries by an act of the colonial legislature. This 



47 

being a revised statute, was unquestionably well considered, and 
therefore is of great weight, for if in the infancy of the colony, 
when this matter was comparatively of small importance, any 
mistake had been committed to the prejudice of the just claims 
of New- York, it would have then most certainly have been cor- 
rected: yet the county boundaries, then again a second time 
prescribed, are all based upon the principle, that New-York had 
no claim to the waters on the New-Jersey side. 

In this statute,* the city and county of New-York are located. 
The city is declared to contain Manhattan's Island, Manning's 
Island, the two Barn Islands, and the three Oyster Islands, "to 
be called the city of New-York, and the rest of the islands, the 
county of New-York." The city and county of New-York are 
thus placed on their own side of the waters. But if the legisla- 
ture of New-York had then supposed that the claim now set up 
against New-Jersey was valid, would it not then have extended 
the boundaries of the city and county to the west side of the 
Hudson ? 

So the counties of West Chester and Dutchess, running from 
the county of New-York, up the river towards Albany, are ex- 
pressly located on the east side of the Hudson. 

But when they get up beyond the north boundary line be- 
tween the two colonies, from the Delaware to the Hudson, 
namely, when they had a right to pass over to the west side of 
the Hudson, then, and not till then, do they attempt to lay out 
counties on the west side of the river. 

The statute declares the county of Orange to begin on the 
New-Jersey line, " on the west side of the Hudson, and to ex- 
tend to Murderer's creek, and westward, into the woods, as far 
as Delaware river." • 

So the county of Ulster is laid ofF on " the west side of the 
river from Murderer's creek, near the high lands, to Sawyer's 
creek." 

And the county of Albany is to extend, on " the west side of 
the Hudson, to the outmost end of Saratoga." This public sta- 

* Smith's and Livingston's Ed. N. Y. Laws, 6, 7, title City ami County of 
New- York. 



48 

tute is decisive of the opinion then entertained of the true boun- 
dary of the province of New-York. It is a legislative declaration 
— a public, contemporaneous exposition, made by the king's re- 
presentative and the colonial legislature, upon the very point in 
controversy ; proving beyond all doubt, that when this law was 
enacted, New-York made no claim to the ownership of these di- 
viding waters. 

This statute is taken from the edition of New-York Laws 
published in 1753, by Chief Justice Smith and the late Governor 
Livingston, then men of eminence at the bar of New-York. 

The first gentleman was the celebrated William Smith, after- 
wards chief justice, under the king, of New-York and of Canada, 
The standing and exalted character of Governor Livingston are 
matters of history in New-Jersey. It never could have occurred 
to them, that so important a right had been relinquished by the 
province of New-York, or they would have pointed it out. That 
no such opinion was entertained by those great men is manifest. 

Shortly after the publication of these laws, the same Mr. Smith 
also published a history of New-York, that is to say, in 1756. 
Not only in his character of revisor of the laws, but especially 
as the writer of a history of the colony, from its first settlement, 
he must have carefully examined all the existing grants, patents, 
and documents in relation to the territorial boundary of the coun- 
try he was about to describe; and these are his words of descrip- 
tion — " The province of New-York at present contains Long 
Island, Staten Island, and the lands on the east side of Hudson's 
river to the bounds of Connecticut." This is a very cautiously 
worded definition of boundary. The significant words " at pre- 
senf" were probably introduced because he intended to include 
Staten Island, which the fearned historian well knew was not 
anciently or rightfully a part of New-York, but had been gained 
by usurpation; and he probably supposed, by long possession, 
might then be called a part of New- York. But if he had enter- 
tained the slightest opinion, that the province whose history he 
was writing, and whose territorial limits he was describing, in- 
cluded the whole of the great river Hudson over to high or low 
water mark on the western side, and the bay of New- York and 



49 

all the rest of the dividing waters, would he have committed 
against New-York so gross and injurious an error as to limit her 
to the eastern side of the Hudson and be silent as to the owner- 
ship of these important waters? There is every reason to believe 
that he would not. The truth is, that until a whole century had 
passed away, no attempt was made to extend the counties of 
New-York over to the west side of the Hudson, south of the 
north partition line. It seems that in the year 1768, the legisla- 
ture of New-York again took up the location of their counties, 
and made a sort of feeble conditional assertion of right, by new 
modelling West Chester, and adding to it all that part of the 
river Hudson which adjoins the county of West Chester, "and 
is to the southivnrd of the county of Orange, or so much as is in- 
cluded in this province.'''' This must now be regarded as a dis- 
guised entering wedge, which then perhaps excited but little at- 
tention, but it fully proves that even then, in 1768, the legislature 
of New-York was not prepared to take the bold ground which 
they have since occupied. They do not hazard the direct asser- 
tion that the west side of the Hudson, south of Orange county 
belonged to (hem; they only venture to extend the jurisdiction, 
provided it belongs to them, which is about as efl'ectual, and not 
more so, than would have been an enactment of the legislature 
of New-Jersey, if it had declared that the boundary of the coun- 
ty of Bergen should extend over the land from the east side of 
the Hudson, to the north side of the East river, or to so much 
thereof as is included in this province of New-Jersey. 

In accordance with this non-claim on the part of New- York, 
was the actual possession. The possession of waters can only 
be made manifest by their use, and by the overt acts done upon 
their shores. The use of these waters for njivigation, commerce, 
fishing, and for all the purposes to which water can be applied, 
had been in the jjroprietors aud inhabitants of New-Jersey from 
its first settlement, without interruption or disturbance f^m New- 
York ; and the possession thus taken of our half of the river 
still continues. The fislieries all along the Bergen shores, carried 
out to the middle of the river, or as far into it as it was benefi- 
cial to go, have existed beyond the memory of man, and still ex- 

G 



50 

ist without any efFeclual opposition having been made thereto by 
New-York. 

The proprietary governors of New-Jersey, and the board of 
proprietors after its estabhshment, exercised every act of owner- 
ship of which the subject matter was susceptible. 

As early as 1669, Governor Carteret granted a licence to 
Peter Hetfelsen, to be the only and common ferryman from 
Communipau to New-York. 

In 1678, a ferry license was given by the same governor 
to Job Simerson, between Bergen, Communipau, and New- 
York. 

Other licenses of the same nature were given for ferries be- 
tween the shores of Bergen county and New-York. 

In 1733, Governor Crosby, as governor of New-Jersey, (be- 
ing also governor of New-York,) granted to Archibald Kennedy, 
esquire, one of the king's council in New-York, and also receiver 
general of the king, a license for a ferry from Bergen to New- 
York. 

In 1746, this same king's councillor and receiver general, Ar- 
chibald Kennedy, made a survey and location of Btdloiv^s Island, 
under a. warrant from the eastern proprietors. 

He also made a similar location of the farm at Horsimus, 
which was called the Dutch West India Company's Garden, 
and might have been supposed to have been acquired personally 
by the king ; as that company acted in a public capacity as go- 
vernors of the country, while it remained under the dominion of 
the Dutch, and he exercised all acts of ownership on the adja- 
cent waters under his New-Jersey title. 

Powles' Hook, Hoboken, and all the Bergen shore was loca- 
ted in like manner under the eastern proprietors, and the own- 
ers have, time out of mind, erected wiiarves and storehouses, 
and cleared fisheries beyond low water mark as far into the river 
as they judged it expedient to go. 

Upon the recent purchase of Powles' Hook by the Jersey 
Company, tiiey built wharves which extend into the river far be- 
yond low v.-ater mark. The corporation of New- York prosecu- 
ted two of the company who were found in that city, for an. 



51 

alleged trespass, but have permitted the suit'to remain untried 
for twenty years. 

Upon this suit the question now in agitation would have ari- 
sen, and might have received a judicial trial and detepmination 
Bill the corporation have declined a resort to an impartial tribu- 
nal, and the wharves, and others since erected, remain undis- 
turbed. 

It is, however, true, that in the year 1730, Governor Mont- 
gomery of New-York, granted another charter to the city of 
New- York, in which an attempt is made to carry the bounds 
and jurisdiction of the corporation to the west side of the Hudson^ 

The words having this operation are these ; after running to 
Red Hook, a line is given ^^from thence across the Hudson to 
low water mark on the ivest side, or along the limits of the province 
to a point opposite to West Chester.'''' This contingent provisional 
extension of the city bounds, is liable to the observation already 
made in regard to tlie new boundary given to the county of West 
Chester in the year 1768, which was probably borrowed from 
this charter, and is no evidence of either title or possession. If 
the true limits of the province did not carry them over to the 
west side of the Hudson, then they have no right to exercise 
any jurisdiction there, but must necessarily stop at the true 
western line, which is the middle of the river, and from thence 
run up their side of the waters until they come opposite to their 
beginning at King's bridge. 

This charter of 1730, is the only public document or private 
conveyance, which purports to convey any rights on the New- 
Jersey side of the Hudson; and as it appears to be mainly re- 
lied on by the corporation of New-York, it may merit a more 
full examination. Ii was granted by the king's governor of New- 
York, in the reign of George the U. and is brought up against 
New-Jersey as a muniment of the title of New- York to the 
whole of this river. The question is, whether the crown of Eng- 
land ever did grant the property of this river to New-York after 
it became re-annexed to the crown ? It is not, to whom the king 
granted the svpervisorship or custody of this royal river: and un- 
'ess this charier does legally grant the river to the corporation 



52 

in full propriety and ownership, it can have no influence on the 
matters in dispute. Our construction of this instrument leads us 
to conclude with confidence that it is no legal conveyance of the 
river, but that the same remained afterwards, and until the revo- 
lution, a part of the domain of the kings of England in their 
political capacity. 

It may well be asked at the outset, what right the governor of 
New-York, or even the legislature of New- York, could possess 
in 1730,to convey ihis river to a corporation. It is a great river, an 
arm of the sea. It was essential to the navigation, the commerce, 
the defence and safety of an important royal colony. The king 
of England could only be the owner of the river as king, by his 
prerogative. 

The character of these waters had essentially changed since 
they had been first conveyed to the Duke of York. Then they 
belonged to a netvly discovered country, just acquired " by con- 
quest, or driving back the savage natives," and as such by the 
received law of nations, as well as by the common law of Eng- 
land, might be granted by patent, or ceded by treaty to whom 
the king saw fit, and upon this principle it is that the river was 
conveyed and passed by the letters patent of 1664, from the 
king to the duke. 

But this river had resulted again to the crown of England ; and 
when this pretended conveyance was made in 1730, the territo- 
ry on each side thereof had been settled by British subjects^ 
and had grown into great and powerful colonies, parcel of the 
dominions of the kings of England, governed by the common 
law of England, and by the statutes enacted by their own legis- 
latures, and entitled to all the benefits and privileges of the mo- 
ther country. The revolution too in England of 1688 had been 
effected, and by it the prerogative of the crown had been redu- 
ced and confined within reasonable bounds. 

The great principle, that the king was the agent and trustee of 
the nation, was fully established. 

In the first year of the reign of queen Anne, an act of parlia- 
ment had deprived the crown of the power of granting its do- 
mains for a longer period than thirty years. After this great event 



55 

had happened, no attempt was ever made in England to grant 
the ownership of rivers on the sole authority of the king. 

It may be well doubted whether king George himself could 
lawfully have granted away the ownership of this great river. 
That his deputy or governor of New- York, or his colonial le- 
gislature were incompetent to it, must be manifest to all. If then 
this river, and these waters could not be legally granted after 
they became re-annexed to the crown, had the charter in terms 
conveyed to the corporation " solum et fundam^^ of all them, 
the same had been void ah initio. The sentence of the law, even 
upon ^such a grant from the king, would have been, " that the 
king was deceived in his grant." 

But such was not the intention of this charter. There are no 
words of grant to be found in it, conveying the soil and owner- 
ship of these waters. The instrument contains a mere descrip- 
tion of boundary for the city of JVcw- York, and those words 
which betray a sinister attempt to extend its limits over to the 
west side, can legally operate only to place the river under the 
supervisorship of the officers of that corporation. 

To this end, the charter grants that the mayor of the city for 
the time being shall be bailiff and conservator of the North and 
East rivers. In speaking of this instrument in 1807, tne com- 
missioners of New-York add, as a fact, that accordingly " all 
arrests on these rivers were made by the mayor, (not the cor- 
poration) as water bailiffs and the process for that purpose was 
directed to him."* 

Lord Hale, in his celebrated Treatise de Jure Maris,f ex- 
plains to us the nature of the office of water bailiff, and recites 
the old cases which might have given rise to this charter of 1730. 
" The office of water bailiff (says Lord Hale) or scrutator, is a 
bare ministerial officer, which the king doth, or may appoint, in 
those rivers or places which are his in franchise or interest, and 
his business is to look to the king^s rights." 

Again he says — "The office of conservator of rivers, we find 
mentioned in the statute of the 1st of Elizabeth, ch. 17, and by 
a grant made to the city of London, and confirmed by the par- 
•Vid. Rep. p9. tHa.L. T,23. 



54 

iiaraent of 17 Richard II. ch. 9, the conservancy of the river 
Thames, from Stainsbridge to Medway, is granted to the mayor 
of London." 

We then see that as early as the reign of Richard II. a grant 
was made, and even confirmed by the legislature, to the London 
corporation, similar to that of 1730, set up by New-York. Nay 
Sir John Davis, in speaking of this charter, calls it a grant of 
the river Thames to the corporation of London. But it was soon 
discovered that even a general grant of the river, and of ^^e su~ 
pervisorship, did not pass the river itself, and the corporation 
were obliged to surrender the grant, and purchase another. These 
are the words of the reporter: — "The city of London, by a 
charter from the king, hath the river Thames granted to them, 
but because it was conceived that the soil and ground of the ri- 
ver did not pass by that grant, they purchased another charter, 
by which the king granted to them solum et fundam the soil and 
bottom of the said river, by force of which grant the city to this 
day receives rent of those who fix posts or make wharves or 
other edifices on the soil of the river"* 

This is without doubt the law, and the case is expressly in 
point. It is founded on a known and well established axiom of 
the common law, " that the king's grants shall pass nothing by 
implication. " This rule was laid down, and acted upon, as the 
true and ancient rule in the great case of the royal fishery on the 
river Banne, in Ireland, in the reign of queen Elizabeth. Davis 
gives us the third resolution of the court thus: — "It was resolved 
that no part of the royal fishery passed by the grant of the land 
adjoining, and by the general grant of all fisheries, for this royal 
fishery was not appurtenant to the land, but a fishery in gross 
and parcel of the inheritance of the crown by itself, and general 
words do not pass such special royalties as belong to the king by 
his prerogative, for the king^s grant shall pass nothing by impli- 
cation." 

Nor would this supervisorship of the river in this case be 
evidence, even of actual possession of the whole river. It was 
about the same time that the corporation of Bergen asserted 

• DaviaRep. 151. Ibid. 157. 



their supposed rights to the river, under their grant from the 
proprietors, by appointing " water bailiffs," who also had grant- 
ed to them the supervisorship of the waters from the western 
shore to the deep waters of the channel. As water bailiffs, it was 
made their duty lo apprehend offenders on liiose waters; and ia 
the execution of their office they did apprehend men from the 
colony of JVtiv-York fishing on the flats. 

In the year 1721,* the proprietor of Pennsylvania claimed 
either the whole or a part of the river Delaware, before the lords 
commissioners of trade and plantations; a board created in Eng- 
land to receive and report to the king and council, in all cases 
of limits and boundary arising in the colonies. This tribunal re- 
ferred the claim to the king's attorney and solicitor general, Sir 
Robert Raymond, afterwards chief justice of England, and Sir 
Philip York, afterwards Lord Chancellor Hardwick. 

These great law officers of the crown, reported, that having 
heard what was alleged by the council for the proprietor of 
Pennsylvania, and having examined the grants of New-Jersey 
and Pennsylvania, they were of opinion " that no part of the 
Delaware river, or the islands lying therein, were wiiliin the 
granting words of the patents and grants, but that the right to 
the same still remained in the croivn.^^ 

Upon the whole, it is manifest that New- Jersey always claim- 
ed, used and possessed the one half at least of the dividing wa- 
ters ; and if upon the true construction of the grants, the said 
waters did not pass, they remained in the crown at the era of 
the American revolution. 

Then the remaining inquiry is, on whom they devolved in 
consequence of that great event. The answer which we give, is 
that the ownership and jurisdiction of and over these waters be- 
came vested in the two states between which they flow ; each 
having title on her own shores, and lo the filttm aquce, or chan- 
nel of the waters. The principles already established conduct us 
at once to this result ; for if these waters belonged lo the Duke 
of York when he became king, and were by that event rc-an- 
noxed to the crown by his accession thereto; or if they did no* 
1 Chalmev's Opinion* 50 



56 

pass by ilie patent to him, but remained always in the crown, 
and continued so until the revolution, then it is but a case of 
conquest by joint arms, and the cession and release of the crown 
of England contained in the treaty of peace of all territorial 
rights, would enure to the common and equal benefit of the two 
slates of which the river was the boundary, and which had been 
always in the possession thereof, and had time out of mind, used 
and occupied the waters for all the purposes to which such wa- 
ters can be applied. 

In such a case, each of the said states is entitled to one 
half of the dividing waters from its own shore, unless one 
could shew a prior and better title to the whole. We have al- 
ready shewn that these waters were no parts of the territory of 
the province of New-York. Neither the king or the duke grant- 
ed the same to that colony, nor had it ever any exclusive pos- 
session. 

But the Duke of York did grant to New Jersey the use of 
these waters for all the purposes for whicli they could be used ;- 
and possession had followed and accompanied the grant. Even 
the residue of the waters not granted to New-Jersey would not 
have resulted to the state of New-York at the end of the wan 
without the aid of this principle ; because they were no part of 
her former territory, but part of the domain of the crown, mere- 
ly flowing between the two states. It cannot be justly alleged 
or maintained that the state of New- York is entitled to all the 
property, franchises, and privileges which remained in the duke 
after his conveyances to the proprietors of New-Jersey. All these, 
the remaining regalia of the duke, reverted to the crown of 
England. New-York acquired by the revolution, only the terri- 
tory ivhich belonged to the colony. She did not, and could not 
legally acquire more than one half of those waters which re- 
mained in the crown, and flowed between her and the state of 
New-Jersey. Before the revolution the actual use of the waters 
was common to the people of both colonies, then subjects of 
the king. The king by his agent or water baliff was in posses- 
sion for the benefit of his people. The only rights on these wa- 
ters which did not belong to the crown, were such as the duke 



I 



57 

had granted away before he became king. He had granted to 
New-Jersey as we have shewn, all waters leading unto her ter- 
ritory for the purposes " of navigation, free trade, fishing, Or 
otherwise." But he had made no grant to his colony of New- 
York of any part thereof. He retained them in his own hands. 
Hence it is manifest that New-Jersey had a belter title to the 
half which she claims before the revolution, than New-York 
had to the other half, and the revolution has fully confirmed and 
established it. New-Jersey had grants, use, and possession. New- 
York had nothing more than such a general use, as the sub- 
jects of the same king must necessarily have of the waters ap- 
pertaining to his crown. 

In the case of Corfield and Carral,* decided in the Circuit 
Court of the United States for the Pennsylvania district, a simi- 
lar question arose. The state of New-Jersey had by legislative 
act, undertaken to regulate the fisheries in the bay of Delaware. 
The right to pass this statute was controverted, and the old grants 
to and from the Duke of York were before the court for con- 
sideration. On the sixth of August, 1660, the duke made a deed 
of confirmation of West Jersey to Penn, Byllinge, and others, 
of the same purport and tenor as that which he afterwards made 
to the twenty-four proprietors of East Jersey ; in which we find 
the same additional words of grant, to be found in the last men- 
tioned conveyance ; namely, "and also the free use of all bays, 
rivers, and waters leading unto, or lying between the said pre- 
mises, or any part thereof, for the purposes of navigation, free 
trade, fishing, &ic." 

It is to be remembered, that there is a most important diver- 
sity between the claim of East Jersey against New-York to one 
half of the dividing waters, and the claim of West Jersey to one 
half of the bay and river Delaware; in this, that the king's grant 
to the duke, makes this bay and river his western boundary, 
running him up the eastern shores thereof, to the most norther- 
ly point of that river, so that no part of this bay and river is in- 
cluded in the words of the grant, according to the opinion of the 
attorney and solicitor general of England, before recited. Judge 

• Vid. rv'alional Gazelle, May 3d, ISi'v 
H 



58 

Washington, in his comment on these grants says, "in this state 
of things, the revolution was conducted to a successful issue, 
when his Britannic majesty relinquished all claims, not only to 
the government, but to his proprietary and territorial rights to 
the same. The right of the crovirn to the bay and the rivei 
Delaware being thus extinguished, it ivould seem to follow, thai 
the right claimed by J^ew- Jersey in those ivaiers xvas thereby con- 
firmed, unless another state could shew a better title. Whether 
the claim of New-Jersey extended to the middle of the bay, as 
we see it did by the compact with Pennsylvania to the middle of 
the river, is a question we have no means of solving, but that 
the proprietors and inhabitants made use of the bay, both for na- 
vigation and fishing, can hardly admit of a doubt. This right is 
indeed expressly granted by the duke, by the grant of the 6th 
August, 1680." 

It contains a grant not only of all bays and rivers to the grant 
ed premises belonging, but also the ^^ free use of all bays and 
rivers leading unto the granted premises, for navigation, fret 
trade, fishing, or otherwise. The only objection which could have- 
been opposed to those acts of ownership under this grant, ivas. 
that the duke had himself, no title to the bay and rive^ Delaware 
under the royal grant to him. But the inhabitants enjoyed those 
privileges. The use of the bay and river amounted to an appro- 
priation of the water so used, (Vattel lib. i, ch. 22, sec. 266) and 
this title became indefeasible by the treaty of peace, except ar 
against some other state having a better title.^^ 

These are the sentiments of this distinguished jurist, and 
surely if the mere use of the waters of the Delaware bay, un- 
der a grant which the duke had no right to make, was such an 
appropriation of the waters as was ripened into an indefeasible, 
title by the treaty of peace ; much more so must the same use 
of the waters between New-Jersey and New- York, which un- 
questionably did pass by the king^s grant to the duke. Pennsyl- 
vania acted on this principle, and from a sense of justice, and a 
conviction of the equitable claim of New-Jersey to one half oi 
the Delaware, divided with her upon the most liberal terms. 

Upon some, or all of these grounds, wc think that the claim 



59 

iet up by the legislature of New-Jersey to one half of the divi- 
ding waters, is fully sustained, both od the principles of muoi' 
cipal and public l.iw. The great principles of justice and equity 
too, which should govern in contests of boundary and limits be- 
iween independent and friendly slates, come in aid of the legal 
title. 

To the acquisition of a full properly in these waters, New-Jer- 
iey contributed her full proportion of blood and treasure. In 
consequence of her restricted northern boundary, she obtained 
not an acre of the vast territory which was divided among the 
states after the revolution. New-York gained by it a mighty em- 
pire, and now in her strength, she attempts to make us depend- 
ant on her for the common privileges of the waters which wash 
our shores, and that in the face of solemn grants and conven- 
tions, expressly conveying those privileges, upon the faith of 
which New-Jersey was first colonized and settled by our an- 
cestors. 

II. Of Staten Island. 

The right of New-Jersey to Staten Island, and the small isl- 
ands contiguous, rests upon the plain terms and true import of 
the original grants before cited. Staten Island, Long or Napau 
Island, and Manhitas or Manhattan Island, were all well known 
hy these names before the making of those grants. Long 
and Manhattan Islands, belong by their natural positions to the 
territory on the east of the Hudson, and Staten Island manifest- 
ly to that on the west of that river. A bare inspection of the 
map therefore, shews that " the tract of land lying and being to 
the westward of Long Island," necessarily includes Staten Isl- 
and. Had it been intended to exclude Staten Island from the 
grant to Berkley and Carteret, it would have been named, as 
well as the other islands, and the grant would have been of "the 
tract of land lying and being to the westward of Staten Island 
and Manhitas Island." The entrance into the North river 
through the Narrows, was well known to be along the western 
shores of Long and Manhattan Islands, and was much more 
likely to be assumed as the boundary between two states, dc- 



signed lo occupy tlie opposite banks of that noble river, than a 
narrow circuitous channel, not navigable throughout by vessels of 
burthen. And however that may have been, we think that the 
terms of the grant are too plain to admit of more than one inter- 
pretation, without doing them great and unnecessary violence. 

The subsequent words of description, " bounded on the east, 
part by the main sea, and part by Hudson's river," appear to us 
not to conflict with, but rather to confirm this construction, 
and equally so, whether the Hudson be considered as properly 
commencing at the Narrows, or at its confluence with the East 
liver. The waters between Staten Island and the main land are 
not a part of the river Hudson, nor are they what is technically 
meant by the term " main sea." They are in fact, rivers and 
bays, through which the waters of the Hackensack, Passaic, and 
Raritan flow into the main ocean. The grants are drawn up 
with great technical precision, and no doubt by eminent con- 
veyancers, under the inspection of the law officers of the crown. 
The language employed, should therefore be understood accord- 
ing to its true legal import. 

But the waters in question are not what is called " main sea," 
either in legal or in common language, and were never so de- 
signated. A part of them was called by the Dutch, Kill Van 
Kull, or river of the bay, and a part Acliier Kull, or Ijjfack bay, 
since corrupted to Arthur CuPs bay. To the west of the Kills, 
the Sound is described in the Indian deed to the Elizabethtown 
people, made October 2Sth, 1664, as " the river that parts Sta- 
ten Island and the main." 

Governor Nichols, in his confirmation of that deed, made the 
ensuing December, it is true, changes the word " river," to 
"sea ;" whether ex industria, or accidentally, can only be con- 
jectured. Be that as it may, there is a well known distinction in 
legal and in common language, between the expressions sea and 
tnain sea. The Monmouth patent granted by Nichols, April 8th, 
1665, describes the land granted, as " beginning at a certain 
place, com.monly called or known by the name of Sandy Point, 
and so running along the bay, west north-west, till it comes lo 
the mouth of the Raritan river, &;c>" No grant or geographical 



Gl 

desciiplion known to us, designates any part of the waters be- 
tween Siaten Island and the main land as the " main sea," nor 
can we persuade ourselves that they are intended by this ex- 
pression, in the grants of the Duke of York. If the phrase was 
not meant as we suppose to be synonimous with main ocean ; 
the arm of the sea, from the Narrows to the confluence of the 
North and East rivers, is much more likely to have been intend- 
ed, and much better answers the description than a narrow and 
shallow sound. 

Notwithstanding the plain import of the grants, it is unques- 
tionable that New-York has possessed Staten Island, and the 
other small islands from the first organization of her govern- 
ment. Had this possession been undisputed, time might have 
ripened it into an undisputed title. But New-Jersey has always 
pnuested against it, and embraced every fit opportunity of as- 
serting the superior validity of her claim, and of endeavouring 
to obtain possession. 

A careful examination of the history of the disputes between 
the two states respecting their boundaries, will fully shew this, 
and will serve also to demonstrate that the early possession of 
New-York was not owing to a contemporaneous construction of 
the grants, satisfactory to the parties concerned, but is explained 
by other circumstances. The long continued possession then, 
having been wrongful from the first, and always resisted, the 
lapse of time has served only to increase the injury. 

If it were conceded that possession, under such circum- 
stances, could establish a right, surely that right must be confined 
to the strict limits of the possession. Now the waters which se- 
parate Staten Island from the main land are not, and never have 
been included Vi^iihin the limits of Richmond county, nor are 
they treated by any law of New- York as within her jurisdiction. 
On the contrary, a part of them, at least, has always been under 
the exclusive jurisdiction of New-Jersey. Colonel Robert Hun- 
ter, the governor of both states, on the 4lh August, 1716, granted 
a charier to Perth-Amboy, under the great seal of the province 
of New- Jersey, by which he fixes the bounds of the city at low 
water mark on the Siaten Island side of the sound, without re- 



62 

striction, and without the intimation of a doubt that the limits of 
t|ie province extended so far. Under this charter, Perth-Amboy 
was a port of entry under the king of England ; it was declared 
a free port by the state of New- Jersey in 1784, and so continued 
until the adoption of the federal constitution, and has been a 
port of entry ever since, under the act of congress : and the mu- 
nicipal authority of the corporation has always been exercised 
over the waters contiguous. The waters of the sound and Kill 
Van Kull have never been claimed by New-York, and this fact 
IS admitted by the commissioners of New-York, in the corres- 
pondence of 1807.* 



In addition to the article under the first head, it may be re- 
marked, that in the correspondence between the commissioners 
on the part of the two stales in 1807, it is asserted by the com- 
missioners of New-York,f " that from their earliest recollection, 
there has always been a reputation, or understanding, that the 
whole of the waters of the river Hudson and of the bay between 
Staten Island and Long Island were within the actual jurisdic- 
tion of New-York;" though there was "no precise reputation or 
understanding either way, whether such jurisdiction extended to 
high water mark, or was confined to low water mark, on the 
shore of New-Jersey." It is admitted, however in the same 
breath, " that the citizens of New- York and New-Jersey had a 
free and common use equally of the waters in question, to take 
fish within the same, and for every other purpose." The under- 
standing of actual jurisdiction asserted, is contradicted by the 
fact of use and occupation by New-Jersey ; and it appears from 
this admission, that the people of New-Jersey have always, in 
the words of the grant from the Duke of York to the tv;enty- 
four proprietors, in 1G82, enjoyed "the free use of all bays, ri- 
vers, and waters leading unto or lying within the province, for 
navigation, free trade, fishing, or otherwise," and that this in- 
cluded the North or Hudson river among the rest. They have, 
' Report p. 28, t Ibid. 



6r> 

on the Hudson river, from Staten Island northward, and directly 
opposite to the city of New-York, huilt wharves extending h^%i 
beyond low water mark, established ferries, and thus occupied 
the waters ; as also by fishing with seines, fykes, and weirs with- 
out interruption, and in various other ways claimed and exer- 
cised acts of ownership in and over the waters in question. 

After the adoption of the federal conslitution, congress, on the 
4th August, 1790, passed the act dividing the states into districts 
for the collection of revenue* Sec, in which they enact, " that 
the district of the city of New- York shall include such part of 
the coasts, rivers, bays, and harbours of the said state not in- 
cluded in the district of Sagg Harbour.*' And they enact also, 
'•' that the district of Perth- Amboy shall comprehend all that part 
of New-Jersey known by the name of East New-Jersey, (that 
part excepted which is included in the district of Burlington) to- 
gether with all the waters thereof heretofore within the jurisdic- 
tion of said state, in which district the towns or landing places 
of New-Brunswick, Middletown-Point, Elizabeth-Town, and 
Newark shall be ports of delivery, and a collector for the district 
shall be appointed, to reside at Perlh-Amboy." Under this act, 
all vessels belonging on the west side of the Hudson river south 
of forty-one degrees of latitude, were enrolled and licensed at 
Perth-Amboy, as belonging to *' waters theretofore within the 
jurisdiction of New-Jersey," by which words the jurisdiction of 
that part of the Hudson or North river was assigned to the col- 
lector of Perlh-Amboy in New-Jersey. By another act of con- 
gress,! passed 8ih March, 180G, it is enacted, " that the town or 
landing place of Jersey shall be a port of delivery, to be annexed 
to the district of Perth-Amboy, and shall be subject to the same 
regulations and restrictions as other ports of delivery in the Uni- 
ted Slates." After the passage of this act, vessels bound to and 
from foreign ports laded and unladed at Jersey, clearing and en- 
tering at Perth-Amboy, and vessels from New-York, merely 
crossing the Norih river, cleared at New- York for Jersey, en- 
tered at the collector's office at Perth-Amboy, and under his 
clearance sailed from Jersey to foreign ports, ft thus appears 
'hat by the act of 1790, giving to the collector of New-York 

* Vol. i.24fi, ^ Vol viii.23. 



64 

jurisdiction ovci aii the coastr, rivers, bays, and harbours of the 
^|said state, no jurisdiction passed or was claimed of the waters on 
the west side of the Hudson contiguous to New-Jersey, while 
by the same act the assignment to the collector of Perth- Amboy 
of all the waters theretofore within the jurisdiction of New-Jer- 
sey passed the control of those waters as such, and as such they 
were occupied without opposition. 

As the port of Jersey was twenty-five or thirty miles distant 
from Perth-Amboy, and great inconvenience was thereby occa- 
sioned in entering and clearing vessels, an application was made 
to congress to make Jersey a port of entry. This was opposed 
by the secretary of le »»vy, ns being too near New-York; and 
by his suggestion, a plan was adopted to annex Jersey to the 
port of New- York ; this plan, being first sanctioned by express 
consent of the state of New-Jersey, manifested by resolution of 
the legislature directed to her senators and representatives in 
congress. An act was passed by congress,* March 2, 181 1, by 
which it is enacted, " that all that part of the state of New-Jersey 
which lies north and east of Elizabeth-Town and Staten Island, 
be, and the same is hereby annexed to the district of New- York; 
that an assistant collector, to be appointed and commissioned by 
the president of the United States, shall reside at the town of 
Jersey, who shall have })ower to enter and clear vessels, in like 
manner as the collector of New- York is authorized to do, but 
such assistant collector shall nevertheless act in conformity to 
such instructions and regulations as he shall from time to time 
receive from the collector of New-York." Under this act, the 
control over the waters of the Hudson, previously exercised by 
the collector of the port of Perth-Amboy, as part of New-Jersey, 
passed to the control of the collector of New-York and his as 
sistaiit at Jersey. The words of the acts of 1790, ISOG and 1811. 
and the proceedings and practice under them riilly sustain the 
fact, that before the year 1790, and since that time, New-Jersey 
possessed jurisdiction over the water? of the Hudson opposite 
her shores. By the last act for collection of revenue on in)ports 
and tonnage, and by consent of New-Jersey the jurisdiction is 
changed, but it is chauged for no other purpose. 



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